This Memorandum summarizes key legislative and regulatory activity of specific interest to tribes and Indian organizations in the 112th Congress (2011-2012). Any legislation that was not enacted into law by adjournment of the 112th Congress died and will have to be reintroduced in the current (113th) Congress in order to receive consideration.
The 112th Congress was characterized by partisan gridlock, and is generally considered a particularly unproductive Congress. The 112th Congress enacted a low number of laws and even many of those concerned minor matters such as the naming of post offices. Congress considered but left undone many major matters including legislation regarding the looming sequestration of funds; education; energy and climate change; housing; the farm bill; tax reform; job training; immigration; and reauthorization of the Violence Against Women Act.
Appropriations for FY 2012 were finally enacted on December 23, 2011, following five short-term Continuing Resolutions. As of this writing FY 2013 funding levels are still not finalized and the current Continuing Resolution funds federal agencies through March 27, 2013. Also yet to be resolved is whether an across-the-board sequestration of funds – required by the Budget Control Act of 2011 unless certain budget savings are realized – will go into effect on March 1, 2013.
The major enacted legislation of significance to tribes was the HEARTH Act which set up a procedure for tribes to lease lands without the Interior Secretary’s approval. Of particular disappointment was the failure of Congress to enact legislation to address the U.S. Supreme Court’s Carcieri v. Salazar decision. That decision created uncertainty about the ability of the Secretary of the Interior to place land into trust for a tribe under the Indian Reorganization Act unless the tribe was federally recognized or under federal jurisdiction in 1934. Another disappointment was that the tribal Title IV-Self-Governance legislation was not enacted.
There was considerable discussion surrounding legislation that would regulate internet gaming, but no bill was enacted.
The minimal amount of public law activity aside, there were significant developments of importance to tribes in the form of federal regulations, agency and inter-agency memoranda of agreement, and issuance of tribal consultation policies.
There was, and continues to be, a flurry of executive agency activity concerning implementation of the Affordable Care Act on matters including Health Insurance Exchanges; Market Reforms; Medicaid expansion; tribal utilization of Federal Employee Health Benefits; Health Insurance Premium Tax Credit; and the VA-IHS reimbursement policy. The House of Representatives voted over 30 times in the 112th Congress to repeal the Affordable Care Act, knowing full well that the Senate would not approve, nor would the President sign, such a bill.
The Cobell settlement received its final approval in November 2012. The process of implementing the settlement has begun with the disbursement of $1.5 billion to the class members. Other activities will include the administration of the land consolidation fund and an Indian scholarship fund.
There were several important U.S. Supreme Court decisions. On June 18, 2012, the Court issued its decision in Match-E-Be-Nash-She-Wish Band of Potawatomi Indians v. Patchak which challenged the Secretary of Interior’s authority to acquire property for the Band as it was not a federally recognized tribe in 1934. Also on June 18, 2012, the U.S. Supreme Court held in Salazar v. Ramah Navajo Chapter that the federal government is required to pay full contract support costs to tribes who contract for services under the Indian Self-Determination Act. Our firm was active in the negotiations that resulted in an agreement on common language for contract support costs provisions in funding agreements with the BIA and the Office of Self-Governance. And on June 28, 2012, the U.S. Supreme Court upheld nearly every aspect of the Affordable Care Act (ACA), including the Indian Health Care Improvement Act and other Indian-specific provisions included in the ACA.
The United Nations Special Rapporteur on the Rights of Indigenous Peoples released the report on the status of indigenous peoples in the United States.
Among the firsts for tribes during 2011-2012 was the Port Gamble S’Klallam Tribe becoming the first tribe to assume direct administration of the Title IV-E Foster Care and Adoption Assistance program as authorized in the Fostering Connections Act (PL 110-351) and the Pascua Yaqui Tribe becoming the first Tribe to have an enhanced tribal identification card approved for use in establishing citizenship and identity for entry into the U.S. under the Western Hemisphere Travel Initiative.
Also in 2012 was the appointment of Kevin Washburn as the Assistant Secretary for Indian Affairs, replacing Larry Echo Hawk, and the appointment of Vincent Logan as Special Trustee for American Indians.
At the end of 2012, Senator Daniel Akaka (D-HI), Chairman of the Senate Indian Affairs Committee, retired. Senator Maria Cantwell (D-WA) became the Chair of the Committee at the start of the 113th Congress. And, sadly, Senator Daniel Inouye (D-HI) passed away on December 17, 2012. Inouye was a former Senate Indian Affairs Committee Chairman and long-time champion of tribal sovereignty.
Uninterrupted Scholars Act 4
Protect our Kids Act 4
Maniilaq Association Land Transfer 4
American Taxpayer Relief Act 5
Special Diabetes Program for Indians Extension 5
BIE-Funded Schools Eligible for Troops to Teachers 5
Tribal-specific provisions in the National Defense Authorization Act 5
Barona Band of Mission Indians Land Transfer Clarification Act 6
Pascua Yaqui Tribe Membership Requirements 6
Bridgeport Indian Colony Land Trust, Health, and Economic Development Act 6
Minnesota Chippewa Tribe Judgment Fund Distribution Act 6
Temporary Assistance for Needy Families Extension 7
Ysleta del Sur Pueblo Blood Quantum Requirement 7
HEARTH Act 7
Moving Ahead for Progress in the 21st Century Act 7
Salmon Lake Land Selection Resolution Act 8
Quileute Tribe Tsunami Protection Act 8
Temporary Assistance for Needy Families Amendments 8
Child and Family Services Improvement and Innovation Act 8
Budget Control Act 9
ADMINISTRATION ACTION/FINAL REGULATIONS 9
ECONOMIC DEVELOPMENT AND TAX-RELATED LEGISLATION 18
EDUCATION LEGISLATION 22
ENERGY LEGISLATION 27
ENVIRONMENT AND NATURAL RESOURCES LEGISLATION 29
FEDERAL RECOGNITION LEGISLATION 32
GAMING LEGISLATION 35
HEALTH AND HUMAN SERVICES LEGISLATION 37
HOUSING LEGISLATION 39
JUSTICE LEGISLATION 40
LAND INTO TRUST LEGISLATION 42
TRIBAL/ALASKA SPECIFIC LEGISLATION 43
OTHER LEGISLATION 51
The following summaries cover actions taken by Congress in the 112th Congress (from January 2011 through December 2012) on selected legislation of significance to tribes. Bills that were enacted into law are listed first, in the reverse chronological order of public law numbers assigned to them. Bills that were not enacted by the end of the session are listed by issue area and within that according to the latest congressional action (Enacted, House or Senate Consideration, Committee Action, Bills Introduced). Unless otherwise stated, Senate bills were referred to the Senate Committee on Indian Affairs and House bills to the House Natural Resources Committee.
• Uninterrupted Scholars Act, PL 112-278. On January 14, 2013, the President signed S 3472, the Uninterrupted Scholars Act, as Public Law 112-278. The Act amends the Family Educational Rights and Privacy Act (FERPA; PL 93-380) to expand access, without written parental consent, to the educational records of foster children to include “agency caseworker or other representative of a State or local child welfare agency, or tribal organization” who are legally responsible for the care and protection of said student. The parental consent provision caused problems for youth in foster care or other out-of-home placements, causing them to at times be placed in the wrong grades and/or to repeat courses unnecessarily. Previously, the Department of Education was prohibited from providing funds to schools and educational institutions that released student records or identifiable information without written parental consent. S 3472 was introduced by Senator Landrieu (D-LA) and a companion bill, HR 5871, was introduced by Representative Bass (D-CA).
• Protect our Kids Act, PL 112-275. On January 14, 2013, the President signed HR 6655, the Protect our Kids Act of 2012, as Public Law 112-275. The Act creates the Commission to Eliminate Child Abuse and Neglect Fatalities, which will be appointed by the President and House and Senate leaders and will come from a wide array of backgrounds as specified in the Act. The Commission will study the use of child protective and child welfare services funded under Title IV of the Social Security Act (child welfare programs, Temporary Assistance for Needy Families, Child Support Enforcement, and the Foster Care, Adoption Assistance and guardianship programs) and Subtitle A of Title XX of the Social Security Act (Social Services Block Grant). Tribal programs will be involved in this study as tribes receive Title IV funds.
The Commission, which will hold hearings and engage in various kinds of research, is to file a report within two years of the appointment of a majority of its members, although the President may extend the deadline for the report by one year. Each federal agency (which would include, among others, the Bureau of Indian Affairs and many agencies in the Department of Health and Human Services) must respond to any Commission recommendation affecting it within six months.
HR 6655 was sponsored by Representative Doggett (D-TX), Ranking Member of the Ways and Means Subcommittee on Human Resources, and had strong bipartisan support. Related bills were HR 3653, S 1984, and S 3705.
• Maniilaq Association Land Transfer, 112-263. On January 14, 2013, the President signed as Public Law 112-263, legislation that directs the Secretary of Health and Human Services to convey certain property located in Kotzebue, Alaska, to the Maniilaq Association (HR 443, H. Rept. 112-318; S 1898, S. Rept. 112-250). The conveyance covers lands and buildings/facilities currently located on such property, which will be used for health and social service programs. It provides that the Maniilaq Association is not liable for any environmental contamination as of the date of conveyance and also provides the Secretary easement and access to the property for retained federal obligations and liability purposes. The Alaska delegation – Representative Don Young, Senators Murkowski and Begich – introduced the bill.
• American Taxpayer Relief Act, PL 112-240. On January 2, 2013, the President signed HR 8, the American Taxpayer Relief Act, as Public Law 112-240, legislation to avert the so-called “fiscal cliff” which would have required deep across-the-board cuts in domestic and defense programs and would have resulted in increased taxes for most people.
Among other things the Act provided a two-month delay of a scheduled sequestration of funds (until March 1, 2013), blocked a 17 percent reduction in the Medicare reimbursement rate for physician services, and extended unemployment emergency compensation and farm bill provisions.
The Act also contains tribal-specific provisions including extension of the Special Diabetes Program for Indians through FY 2014 (see below); and extension of the following three tax provisions: 1) Indian Unemployment Tax Credit, 2) accelerated depreciation for business property on Indian reservations, and 3) production credit for Indian coal facilities placed in service before 2009.
For additional information see our General Memorandum 13-02 (January 4, 2013).
• Special Diabetes Program for Indians Extension, PL 112-240. On January 2, 2013, the President signed into law HR 8, the American Taxpayer Relief Act, as Public Law 112-240, described above. Included in the Act is a one-year extension of funding (through FY 2014 at the current rate of $150 million per program, per fiscal year) for the Special Diabetes Program for Indians (SDPI) and the Special Diabetes Program for type-1 research (SDP). SDPI funding is mandatory and, should a sequestration of funds go into effect, would only be subject to a two percent cut rather than the higher percentage reduction that would be applied to discretionary spending.
For additional information see our General Memorandum 13-02 (January 4, 2013).
• BIE-Funded Schools Eligible for Troops-to-Teachers, PL112-239. On January 2, 2013, the President signed the National Defense Authorization Act (HR 4310, H. Rept. 112-705) as Public Law 112-239. Division E, sec. 541, of the Act makes several changes to the Troops to Teachers program which is authorized under the Elementary and Secondary Education Act. First, the responsibility and authority for operating the Troops-to-Teachers Program is transferred from the Secretary of Education to the Secretary of Defense. More importantly, the Act specifically expands the definition of “eligible schools” where retired/former service personnel may be employed to include Bureau of Indian Education (BIE)-funded schools and charter schools.
• Tribal-specific provisions in the National Defense Authorization Act, PL 112-239. On January 2, 2013, the President signed the National Defense Authorization Act (HR 4310, H. Rept. 112-705) as Public Law 112-239. In addition to the section amending the Troops-to-Teachers Program, there are a number of sections which may be of interest to tribes. They are as follows:
o (sec. 312) Authority of Secretary of a military department to enter into cooperative agreements with Indian tribes for land management associated with military installations and State-owned National Guard installations
o (sec. 563) Amendments to the Impact Aid program
o (sec. 1087) Removal of action
o (sec. 1632) Reporting on goals for procurement contracts awarded to small business concerns
o (sec. 1801-1803) Fire Grants Reauthorization
o (sec. 3151) Report on abandoned uranium mines
• Barona Band of Mission Indians Land Transfer Clarification Act, PL 112-232. On December 28, 2012, the President signed the Barona Band of Mission Indians Land Transfer Clarification Act as Public Law 112-232 (S 3193, S. Rept. 112-207; H. Rept. 112-702). The Act corrects the identification of lands that were placed in trust for the Barona Band under the Native American Technical Corrections Act of 2004 (PL 108-204). Based on a negotiated agreement among the Barona Band, county and neighboring homeowners, the Act removed the private property mistakenly identified in PL 108-204 and placed the correct parcel in trust for the Band. S 3193 was introduced by Senator Feinstein (D-CA).
• Pascua Yaqui Tribe Membership Requirements, PL 112-214. On December 20, 2012, the President signed as Public Law 112-214 legislation (HR 3319, H. Rept. 112-675) that eliminates the Pascua Yaqui Tribe’s membership criteria established under its recognition Act. Instead, the Act, introduced by Representative Grijalva (D-AZ), allows the Tribe to enroll as members “any United States citizen of Pascua Yaqui blood enrolled by the tribe.”
• Bridgeport Indian Colony Land Trust, Health, and Economic Development Act, PL 112-212. On December 20, 2012, the President signed as Public Law 112-212 legislation (HR 2467, H. Rept. 112-611) that authorizes approximately 32 acres of federal land and seven acres on which a health clinic had been built to be taken into trust for the benefit of the Bridgeport Indian Colony in California. The expansion of the Tribe’s reservation with the addition of the present federal lands is intended to be used for housing, a community activity center and economic development. Representative McKeon (R-CA) introduced the bill.
• Minnesota Chippewa Tribe Judgment Fund Distribution Act, PL 112-179. On October 5, 2012, the President signed as Public Law 112-179 legislation (HR 1272, H. Rept. 112-501) to authorize distribution of the 1999 $20 million settlement awarded to the Minnesota Chippewa Tribe among the separate Bands (except for the Red Lake Band). The Act authorizes reimbursement to the Tribe for the judgment amount and interest earned on it plus attorney fees and litigation expenses related to the settlement. It also directs the Secretary to distribute to the Bands amounts totaling $300 for each member of each Band, and an equal division of the remaining balance to each Band. Participating Bands are Bois Forte Band; Fond du Lac Band; Grand Portage Band; Leech Lake Band, Mille Lacs Band; and White Earth Band.
Representative Peterson (D-MN) introduced HR 1272 and Senator Franken (D-MN) introduced the companion bill (S 1739).
• Temporary Assistance for Needy Families Extension, PL 112-175. On September 28, 2012, the President signed H. J. Res. 117, a Continuing Resolution extending FY 2013 funding for federal agencies through March 27, 2013, as Public Law 112-175. Included in the Act is an extension of the Temporary Assistance for Needy Families (TANF) program through March 31, 2013. There were several short-term extensions of the TANF program during the 112th Congress, and Congress will soon have to consider a reauthorization or another extension of the program.
• Ysleta del Sur Pueblo Blood Quantum Requirement, PL 112-157. On August 10, 2012, the President signed as Public Law 112-157, legislation which amends the Ysleta del Sur Pueblo’s legislative recognition membership criteria (HR 1560, H. Rept. 112-222). The Act authorizes the Tribe to change its membership criteria from the legislatively imposed limit of 1/8 blood quantum to instead allow the Tribe to determine its own blood quantum requirement for membership, as do most other federally-recognized tribes. The bill’s sponsor was Representative Reyes (D-TX), who had introduced similar legislation since the 105th Congress.
• HEARTH Act, PL 112-151. On July 17, 2012, the President signed as Public Law 112-151 the “Helping Expedite and Advance Responsible Tribal Homeownership” (HEARTH) Act (HR 205, H. Rept. 112-427). The Act authorizes any tribe, at its own option, to lease its tribal trust land without approval by the Secretary of the Interior.
In order to take advantage of the HEARTH option, a tribe will have to adopt regulations governing the leasing process, which will be subject to approval by the Secretary. Leases for exploration, development, or extraction of any mineral resources are excluded from the authority provided in the Act. Leases of individually owned allotted Indian lands are also excluded, thus still requiring Secretarial approval.
The House version was introduced by Representative Heinrich (D-NM) and the Senate version (S 703) by Senator Barrasso (R-WY).
For additional information see our General Memorandum 12-089 (July 20, 2012).
• Moving Ahead for Progress in the 21st Century Act, PL 112-141. On July 6, 2012, President Obama signed as Public Law 112-141 the Moving Ahead for Progress in the 21st Century Act (MAP-21) (HR 4348, H. Rept. 112-557). The MAP-21 Act authorizes new surface transportation programs for fiscal years 2013 through 2014 and extends the current surface transportation law, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU, PL 109-59), through the remainder of FY 2012.
Under MAP-21, the funding level for the newly established Tribal Transportation Program (TTP) will be $450 million, which is the same level that the Indian Reservation Roads (IRR) Program was funded at in SAFETEA-LU. These funds, however, must now cover two additional programs: the IRR Bridge Program and a tribal safety program. Also, MAP-21 establishes a new tribal shares funding formula, which will be gradually implemented over several years and will largely replace the regulatory formula used under SAFETEA-LU. In addition, there are two non-transportation provisions included in MAP-21: the interest rate for federally subsidized student loans and a study on tribal government and tribal member participation in the National Flood Insurance Program.
For additional information see our General Memorandum 12-091 (July 23, 2012).
• Salmon Lake Land Selection Resolution Act, PL 112-133. On June 15, 2012, the President signed as Public Law 112-133 legislation to ratify an agreement among the Secretary of Interior, the State of Alaska and the Bering Straits Native Corporation (S 292, S. Rept. 112-52; H. Rept. 112-428). The agreement reached in 2007 resolves conflicting land selections between the State and Corporation in the area around Salmon Lake, which is 38 miles north of Nome.
S 292 was introduced by Senators Murkowski (R-AK) and Begich (D-AK). Representative Don Young (R-AK) introduced the companion measure (HR 296).
• Quileute Tribe Tsunami Protection Act, PL 112-97. On February 27, 2012, the President signed as Public Law 112-97, legislation that conveys two parcels of Olympic National Park lands to the Quileute Indian Tribe to provide the community with lands outside the tsunami and Quillayute River flood zones. Portions of the conveyed lands may be used for housing relocation of tribal members and other buildings but may not be used for gaming purposes. Among other things, the Act adjusts the northern boundary of the Quileute Indian Reservation, and clarifies public use and access to Olympic National Park lands that are contiguous to the Reservation.
HR 1162 (H. Rept. 112-387) was sponsored by Representative Dicks (D-WA).
• Temporary Assistance for Needy Families Amendments, PL 112-96. On February 22, 2012, President Obama signed the Middle-Class Tax Relief and Job Creation Act (HR 3630) as Public Law 112-96. The Act extended for seven-months (through September 30, 2012) the Temporary Assistance for Needy Families (TANF) program. It also included two other provisions affecting the TANF program.
Included in the Act is a directive to the Secretary of the Department of Health and Human Services to issue rules governing data exchange standards for reporting under the TANF program. The standards are, to the extent practicable, to be nonproprietary and interoperable. In developing the rules, the Secretary is to consult with an interagency workgroup established by the Office of Management and Budget and to take into account state and tribal perspectives with regard to the data exchange standards. The language in the Act was taken from other bills on this subject, including HR 3659 and HR 3339.
The Act also requires that states ensure that TANF electronic benefit cards cannot be used in liquor stores, gaming establishments, or in strip-clubs or other adult-entertainment venues. The provision does not apply to tribally-administered TANF programs, although the use of electronic benefit cards for tribal TANF benefits is not wide-spread. States that fail to meet this requirement within two years will lose five percent of their TANF award. Violations that are caused by individual fraud will not result in a state penalty. This provision is similar to that in HR 3567.
• Child and Family Services Improvement and Innovation Act, PL 112-34. On September 30, 2011, the President signed HR 2883, the Child and Family Services Improvement and Innovation Act (Act), as Public Law 112-34. The Act reauthorizes several child welfare programs which benefit tribes through fiscal year 2016 and, for the first time, provides tribal eligibility for Court Improvement Program grants. In addition, a tribe who administers the Title IV-E Foster Care and Adoption Assistance Program is authorized to apply for a waiver to operate the program as a demonstration project.
Sponsors of the legislation that became PL 112-34 were Ways and Means Subcommittee on Human Resources Chairman Davis (R-KY) and Ranking Member Doggett (D-TX) and Senate Finance Committee Chairman Baucus (D-MT) and Ranking Member Hatch (R-UT).
For additional information see our General Memorandum 11-115 (October 14, 2011).
• Budget Control Act, PL 112-25. On August 2, 2011, President Obama signed S 365, the Budget Control Act of 2011 (Act), as Public Law 112-25. The Act raised the nation’s debt limit and set forth the required federal deficit reduction measures covering fiscal years 2012 through 2021.
The measure is of enormous and long-term importance to tribal governments and others as it places very restrictive spending cap requirements on Congress, limits that are legally binding. The spending reductions could be met through the account-by-account work of the appropriations committees and/or by changes in entitlement program statutes and/or tax laws, and failing that, by across-the-board sequestration of funds.
For additional information see our General Memorandum 11-094 (August 5, 2011).
ADMINISTRATION ACTION/FINAL REGULATIONS
• Revised BIA Leasing Regulations. On December 5, 2012, the Bureau of Indian Affairs (BIA) published the final regulations governing the leasing of Indian lands, codified at 25 C.F.R. Part 162. The regulations improve, simplify, and expedite the process for approving surface leases for residential, business, and wind and solar resource (WSR) leasing on Indian land. The final regulations also eliminate the requirement that the BIA approve land-use permitting on Indian land for residential, business, and WSR purposes. The regulations now provide clarity on the required contents for, and the administrative processes applicable to, different types of leases.
For additional information see our General Memorandum 12-135 (December 28, 2012).
• Sacred Sites MOU. On December 5, 2012, the Advisory Council on Historic Preservation (ACHP) and four federal agencies – the Departments of Defense, Interior, Agriculture and Energy – issued a Memorandum of Understanding (MOU) REGARDING INTERAGENCY COORDINATION AND COLLABORATION FOR THE PROTECTION OF INDIAN SACRED SITES. While the MOU uses the definition of sacred site in Executive Order 13007, Indian Sacred Sites, it also recognizes that sacred sites “often occur within a larger landform or are connected through features or ceremonies to other sites or a larger sacred landscape.” The MOU includes a list of eleven action items on which the agencies agree to jointly work. The agencies also agree to consult with tribes “as appropriate in developing and implementing” the listed actions.
For additional information see our General Memorandum 12-133 (December 14, 2012).
• Veterans Administration-Indian Health Service National Reimbursement Agreement. On December 5, 2012, the Veterans Administration (VA) and the Indian Health Service (IHS) signed an agreement regarding reimbursement by the VA to the IHS for medical services provided to veterans. The agreement is in fulfillment of a requirement in the Affordable Care Act. The agreement includes, as tribes had wanted, the outpatient all-inclusive rate. Under the agreement, the IHS negotiates with the VA regarding the facilities it administers, while tribes can individually negotiate with the VA or use the national agreement signed on December 5, 2012. A copy of the MOU is available at: http://www.ihs.gov/PublicAffairs/DirCorner/docs/VA_IHS_FINAL_Reimbursement_Agreement_signed_5Dec12.pdf
• Department of Labor Tribal Consultation Policy. On December 4, 2012, the Department of Labor (DOL) published its Tribal Consultation Policy (Policy). Under the Policy, the Director of the Office of Public Engagement, working in conjunction with other DOL offices (Intergovernmental Affairs, Office of the Secretary) will coordinate the Tribal Consultation Policy. Each DOL operating agency will designate a senior official with primary responsibility for tribal matters. The Policy addresses a number of activities including ways the DOL will undertake proactive and ongoing consultation.
For additional information see our General Memorandum 12-131 (December 14, 2012).
• HUD Rule Amending NAHASDA Regulations. On December 3, 2012, the Department of Housing and Urban Development (HUD) published the final rule resulting from the negotiated rulemaking on the Native American Housing and Self-Determination Act (NAHASDA) regulations that began in 2010. The rule represents a significant modification to the regulations at 24 CFR part 1000, and addresses every part of those regulations except for Subpart D, which deals with the Indian Housing Block Grant (IHBG) allocation formula. The IHBG allocation formula will be the subject of an upcoming negotiated rulemaking.
For additional information see our General Memorandum 12-127 (December 7, 2012).
• HHS Guidance on De-Identifying Protected Health Information. On November 26, 2012, the Department of Health and Human Services’ Office for Civil Rights released guidance regarding methods for de-identifying protected health information (PHI) in accordance with the Heath Insurance Portability and Accountability Act of 1996 (HIPAA). The guidance, which was mandated by the Health Information Technology for Economic and Clinical Health Act as a part of the American Recovery and Reinvestment Act of 2009, explains and answers questions regarding the two methods covered entities and business associates can use to de-identify PHI under the HIPAA Privacy Rule.
For additional information see our General Memorandum 12-134 (December 14, 2012).
• Department of Justice Policy on Eagle Feathers. On October 12, 2012, the Department of Justice (DOJ) issued the “Possession or Use of the Feathers or Other Parts of Federally Protected Birds for Tribal Cultural and Religious Purposes” (Policy) memorandum. The Policy is an internal DOJ guidance document on the exercise of prosecutorial discretion by U.S. attorneys and other DOJ officials that formalizes and memorializes the longstanding policy and practice of the DOJ. The Policy includes specific standards for prosecutorial discretion. It expressly states that tribal members are covered regardless of whether they have a permit from the U.S. Fish and Wildlife Service, and that it does not apply to persons who are not members of federally recognized tribes. The DOJ will continue to prosecute tribal members and non-members for violating federal laws that prohibit killing eagles or other protected birds, or the buying or selling of feathers or other parts of protected birds.
For additional information see our General Memorandum 12-121 (October 19, 2012).
• Establishment of Chimney Rock National Monument, Presidential Proclamation 8868. On September 21, 2012, the President issued Proclamation 8868, under the authority provided by the Antiquities Act, to designate the Chimney Rock Archeological Area in the San Juan National Forest in Colorado as the Chimney Rock National Monument. The Chimney Rock Archeological Area is surrounded by the Southern Ute Indian Reservation but is also considered culturally and spiritually significant by the Pueblo tribes of New Mexico. The Proclamation acknowledges the significance of the Monument and allows for continued use of the Monument by Indian tribes for traditional ceremonies and as a source of traditional plants and other materials.
Prior to the President’s Proclamation, the Chimney Rock National Monument Establishment Act was introduced as HR 2621 and S 508. See the section on ENVIRONMENT AND NATURAL RESOURCES LEGISLATION.
• EEOC Assistance to Tribes to Investigate and Settle Employment Discrimination Claims. On September 18, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) announced a national initiative to encourage Indian tribes to partner with the EEOC to reduce employment discrimination in Indian Country.
The EEOC asked tribes to consider a model Memorandum of Understanding (MOU) that would allow a tribe to voluntarily agree to authorize the EEOC to assist the tribe in the investigation and processing of employment discrimination complaints. The MOU prerequisites are that a tribe must have an employment discrimination ordinance covering a number of specific matters and a Tribal Employment Rights Office that is empowered to enforce that ordinance.
For additional information see our General Memorandum 12-120 (October 12, 2012).
• USDA/BIA Memoranda of Understanding to Improve Tribal Access and Improve Services. In September 2012, the Department of Agriculture (USDA) and the Department of the Interior signed two memoranda of understanding (MOU) to promote improved tribal and tribal member access to USDA and Bureau of Indian Affairs (BIA) programs. The relevant programs are those administered by the Farm Service Agency, the Natural Resources Conservation Service, and Rural Development at USDA, and the BIA at the Department of the Interior.
The MOUs establish a framework for consultation, training, coordination, and the provision of technical assistance which will increase the amount of Indian land enrolled under USDA conservation programs through the Natural Resources Conservation Service and farm loan programs through the Farm Service Agency and improve service delivery on those lands. Farming and animal management, grazing, ranching and related food and agricultural operations will be supported through improved interdepartmental coordination. The MOUs also support the establishment of Native rural businesses, renewable energy development, and job creation.
The MOUs call for the BIA to work with USDA Rural Development to increase homeownership, home repair, and rehabilitation opportunities, and improve energy efficiency of homes on Indian lands. The MOUs also address the USDA’s Rural Utilities Service, which will work with BIA to implement and administer the Substantially Underserved Trust Areas provision of the 2008 Farm Bill to increase affordability and availability of RUS-supported infrastructure on Indian lands. Copies of the MOUs are available at http://www.bia.gov/cs/groups/public/documents/text/idc-022210.pdf.
• IRS Clarifies Per Capita Payments from Proceeds of Certain Settlements of Indian Tribal Trust Cases Not Taxable. The Internal Revenue Service (IRS) in Notice 2012-60 confirmed that per capita payments from trust accounts resulting from Cobell v. Salazar and similar tribal trust administration settlements are excluded from consideration as income for federal tax purposes. There are, however, some exceptions. The decision is limited to the proceeds of settlements with the 55 federally recognized tribes that have entered into settlement agreements of tribal trust cases as well as to similar tribal trust case settlements that will be subsequently identified by the IRS. Other per capita distributions are subject to the Per Capita Act (PL 98-64).
For additional information see our General Memorandum 12-112 (September 7, 2012).
• Food Distribution Program on Indian Reservations Rule on Administrative Funding Allocations. On August 23, 2012, the Department of Agriculture published the final rule on the administrative funding allocations for the Food Distribution Program on Indian Reservations and the Food Distribution Program for Indian Households in Oklahoma (both referred to as FDPIR). The purpose of the administrative funding allocation methodology is to ensure equitable and fair distribution of resources. The regulations also clarify program requirements for the distribution of administrative funds to tribal organizations and state agencies, and allowable costs for use of the administrative funds.
For additional information see our General Memorandum 12-106 (August 24, 2012).
• CMS Clarifies Trust Settlement Per Capita Payments to be Excluded as Income for Medical Assistance Eligibility. On August 15, 2012, the Centers for Medicare and Medicaid Services issued a clarification letter that per capita payments from trust accounts resulting from Cobell v. Salazar and similar tribal trust administration settlements are excluded as income or resources for determining eligibility for Social Security benefits, including Medicaid and the Children’s Health Insurance Program.
For additional information see our General Memorandum 12-111 (September 7, 2012).
• BIA Adopts Categorical Exclusion for Homesites. On August 10, 2012, the Department of the Interior revised its procedures for implementing the National Environmental Policy Act (NEPA) by adopting a new categorical exclusion for actions by the Bureau of Indian Affairs (BIA) associated with leasing and/or constructing single-family homes on Indian land. The adoption of this categorical exclusion is intended to expedite compliance with NEPA for covered BIA actions by eliminating the need to prepare an environmental assessment, unless an extraordinary circumstance applies.
For additional information see our General Memorandum 12-104 (August 24, 2012).
• National Indian Gaming Commission Publishes Four Rules. On August 9, 2012, the National Indian Gaming Commission (NIGC) published four sets of rules that amend 25 Code of Federal Regulations:
o Part 502 Definitions – adds a definition for “enforcement action”
o Part 537 Background Investigations for Persons or Entities with a Financial Interest In, or Having Management Responsibility for, a Management Contract – gives the NIGC Chair discretion to reduce the background investigations required for certain tribal entities or financial entities already subject to federal regulation, background checks and/or licensing under a tribal-state compact
o Part 571 – Monitoring and Investigations – adopts a new § 571.4 which authorizes the NIGC, in its discretion, to issue an “investigation completion letter” advising parties that a previously open NIGC investigation has been completed
o Part 573 – Enforcement – sets out a “pre-enforcement process” intended to allow tribes to voluntarily come into compliance before the NIGC Chair takes enforcement action
• Reallocation of Tribal Economic Development Bonds. On July 18, 2012, the Internal Revenue Service (IRS) and the Treasury Department announced through Notice 2012-48 that they will reallocate $1.8 billion in bond volume cap through Tribal Economic Development Bonds (TEDB).
The original TEDB program, created in the American Recovery and Reinvestment Act of 2009, was not successful in Indian Country due to programmatic restrictions and adverse credit markets. The IRS has now revamped the TEDB program to increase the likelihood that tribes will be able to successfully issue bonds to fund economic development projects.
For additional information see our General Memorandum 12-096 (July 27, 2012).
• Executive Order on Accelerating Broadband Infrastructure Deployment. On June 14, 2012, President Obama signed Executive Order 13616, Accelerating Broadband Infrastructure Deployment. The intent of the Order is to facilitate broadband deployment on federal lands, buildings, rights-of-way, federally assisted highways, and tribal and individual Indian trust land.
For additional information see our General Memorandum 12-081 (June 29, 2012).
• Rural Utilities Service Regulations Implementing Priority Access to Financing for Substantially Underserved Trust Areas. On June 13, 2012, the Department of Agriculture–Rural Utilities Service (RUS) published final regulations to implement the Substantially Underserved Trust Area (SUTA) provisions of the 2008 Farm Bill. The purpose of the SUTA program is to assist Indian, Alaska Native, and Native Hawaiian communities obtain grants, loans, and guaranteed loans from the RUS to address the significant lack of access to telephone, internet, electricity, water and sewer needs.
For additional information see our General Memorandum 12-075 (June 15, 2012).
• IRS Regulations on the Health Insurance Premium Tax Credit. On May 23, 2012, the Internal Revenue Service (IRS) published final regulations on the health insurance premium tax credit enacted by the Patient Protection and Affordable Care Act (ACA). The ACA requires individuals who do not have qualifying coverage to obtain health insurance coverage. To make this requirement more affordable for individuals with household incomes between 100 percent and 400 percent of the federal poverty level (FPL), the law provides tax credits to individuals purchasing insurance on the Exchange plans to lower the cost of premiums.
In the final rule, the IRS confirmed that being eligible for Indian Health Service coverage does not disqualify American Indians and Alaska Natives from being able to qualify for the premium tax credit. This means that American Indians and Alaska Natives with incomes between 100 percent and 400 percent of the FPL can purchase subsidized insurance on the Exchanges. The IRS also confirmed that tribes can pay premiums on behalf of their members and that their members would qualify for the premium tax credit.
For additional information see our General Memorandum 12-072 (June 8, 2012).
• EPA Rule Requires Toxic Release Inventory Reporting to Tribal Governments. On April 19, 2012, the Environmental Protection Agency (EPA) published a final rule which requires the owners or operators of facilities located in Indian Country (as defined at 40 C.F.R. 372.3) to report the use of toxic chemicals to the appropriate tribal government of their relevant area, rather than to the state. The rule also clarifies that tribal governments may request that EPA require a non-covered facility located in Indian Country to submit Toxics Release Inventory (TRI) forms. Tribes also may petition EPA to add a chemical to the TRI list, or to delete a chemical from the TRI list, just as states are authorized to do.
For additional information see our General Memorandum 12-056 (April 27, 2012).
• Veterans Administration Issues Rule on Tribal Veterans Cemetery Grants. On January 30, 2012, the Veterans Administration (VA) issued a final rule in compliance with the Veterans Benefits, Health Care, and Information Technology Act of 2006 (PL 109-461) requirement that tribal organizations are eligible for its veterans cemetery grants program. Under this program grants are made for the establishment, expansion, and improvement of veterans’ cemeteries. The VA reimburses up to 100 percent of the costs associated with the establishment, expansion, and improvement of a veterans cemetery, as well as the cost of initial operating equipment. Tribal veterans cemeteries receiving funds under this program must be on trust land and operated by a tribe or tribal organization.
For additional information see our General Memorandum 12-021 (February 10, 2012).
• Tribal Title IV-E Regulations. On January 6, 2012, the Department of Health and Human Services published the interim final rule for implementation of the Tribal IV-E program. Under the Fostering Connections to Success and Increasing Adoptions Act of 2008 (PL 110-351), tribes and tribal consortia are authorized to directly administer the Title IV-E Foster Care, Adoption Assistance, and (at tribal option) Guardian Assistance Program.
For information on the Act see our General Memorandum 08-124 (October 17, 2008).
• FCC Issues Report and Order to Enhance Tribal Ownership of FM Radio Stations. On December 29, 2011, the Federal Communications Commission released the final rule “Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures” designed to facilitate tribal and tribally-affiliated ownership of commercial FM radio stations.
For additional information see our General Memorandum 12-004 (January 13, 2012).
• Office of Personnel Management Letter on Implementation of the Federal Employee Health Benefits (FEHB) Program. On December 21, 2011, the Office of Personnel Management (OPM) issued a letter to tribal leaders regarding the implementation of Section 409 of the Indian Health Care Improvement Act (IHCIA), Access to Federal Insurance.
Section 409 of the IHCIA provides that tribes and tribal organizations carrying out programs under the Indian Self-Determination and Education Assistance Act, and urban Indian organizations carrying out programs under Title V of the IHCIA, are eligible to purchase Federal Employee Health Benefits and Federal Employees Group Life Insurance. Tribal programs can purchase the same insurance for their employees as federal agencies.
For additional information see our General Memorandum 12-005 (January 13, 2012).
• Department of Justice Regulations for Assumption of Concurrent Criminal Jurisdiction in PL 280 States. On December 6, 2011, the Department of Justice published a final rule which allows an Indian tribe to request that the federal government reassume criminal concurrent jurisdiction in mandatory Public Law 280 (PL 280) states. The final rule also sets the standards by which the U.S. Attorney General will determine whether or not to grant the tribe’s request.
The authority for Indian tribes to request that the United States reassume concurrent criminal jurisdiction in Indian Country was a key component of the Tribal Law and Order Act of 2010 (PL 111-211). Section 221, which provided this authority, was sought by Indian tribes to partially reverse over a half century of termination-era law that transferred federal criminal jurisdiction to six states without any tribal consent. This section, however, does not affect the state’s criminal jurisdiction over a tribe’s Indian Country. Thus, the outcome of a successful tribal request will be a system of shared criminal jurisdiction involving the federal, state, and tribal governments. Under the final rule, Section 221 applies to tribes located in mandatory PL 280 states, because it is the position of the Department of Justice that the federal government has always retained concurrent criminal jurisdiction in the non-mandatory PL 280 states.
For additional information see our General Memoranda 11-146 (December 13, 2011) and 11-065 (May 26, 2011).
• Executive Order Creating White House Initiative on American Indian/Alaska Native Education. On December 2, 2011, President Obama signed Executive Order 13592, Improving American Indian and Alaska Native Education Opportunities and Strengthening Tribal Colleges and Universities, which establishes a White House Initiative on American Indian and Alaska Native Education. The Executive Order calls for the coordination and collaboration of efforts among federal agencies as well as with Indian tribes and tribal education agencies to improve education outcomes and expand the education opportunities for American Indian and Alaska Native students from the early learning years through the post-secondary level.
For additional information see our General Memorandum 11-148 (December 13, 2011).
• Department of the Interior Tribal Consultation Policy. On December 1, 2011, the Secretary of Interior and the Assistant Secretary – Indian Affairs announced the release of the final version of the Department of the Interior Policy on Consultation with Indian Tribes. In addition, Secretary Salazar signed Secretarial Order 3317, which establishes responsibilities for implementing the Policy throughout the Department of the Interior.
For additional information see our General Memoranda 11-152 (December 16, 2011; 11-015 (February 4, 2011) and 11-070 (June 10, 2011).
• Centers for Medicare and Medicaid Tribal Consultation Policy. In a November 17, 2011, letter to tribal leaders, the Centers for Medicare and Medicaid released its Tribal Consultation Policy. The Policy lists the federal and tribal entities considered as consultation parties and also addresses communications with entities that are not tribal governments.
For additional information see our General Memorandum 11-135 (November 18, 2011).
• Head Start Rule to Improve Program Quality and Accountability. On November 9, 2011, the Department of Health and Human Services (HHS) published a final rule that addresses the Head Start and Early Head Start requirements contained in the Improving Head Start for School Readiness Act of 2007 (Act). The Act required the HHS: 1) to develop and implement a designation renewal process to asses if a Head Start/Early Head Start agency is or is not a high quality comprehensive program, and 2) re-compete the award when a Head Start agency/grantee is under-performing.
For additional information see our General Memorandum 11-131 (November 14, 2011).
• OMB Policy Letter Defining “Inherently Governmental Function”. On September 12, 2011, the Office of Management and Budget (OMB) published a final policy letter which provides Executive Departments and agencies guidance on managing the performance of inherently governmental and critical functions. The OMB’s policy clarifies which functions are inherently governmental and therefore must always be performed by federal employees. The final policy letter also explains what agencies must do when work is “closely associated” with inherently governmental functions and requires agencies to identify their “critical functions” to ensure they have sufficient internal capability to maintain control over functions that are core to the agency’s mission and operations.
In response to comments filed, the policy letter makes clear that it is not intended to modify or otherwise affect any rights or limitations set forth under the Indian Self-Determination and Education Assistance Act.
For additional information see our General Memorandum 11-117 (October 21, 2011).
• Administration for Children and Families Tribal Consultation Policy. On August 18, 2011, the Administration for Children and Families (ACF) issued its tribal consultation policy (Policy). The Policy applies to all ACF offices, many of which directly impact tribes: Children’s Bureau; Family and Youth Services Bureau; Administration for Native Americans; Child Care; Child Support Enforcement; Family Assistance (Temporary Assistance for Needy Families); and Head Start.
For additional information see our General Memorandum 11-105 (September 1, 2011).
• Tribal Title IV-E FMAP Rate Rule. On August 1, 2011, the Department of Health and Human Services published the methodology for calculating the tribal Federal Medical Assistance Percentage (FMAP) for the tribal Title IV-E Foster Care, Adoption Assistance, and Kinship Guardian Assistance programs. The rates determined for each tribe apply whether the programs are administered directly by a tribe or through a contract with a state Title IV-E agency. The FMAP is the federal share of assistance for a program, and rates are based on the per capita income of the tribe’s service population. No tribal FMAP or federal share can be lower the state FMAP rate in which it is located.
• DOI Revised Definition of “Indian Tribe” in Regulations Implementing the Native American Graves Protection and Repatriation Act. On July 5, 2011, the Department of the Interior issued an interim final rule revising the regulations implementing the Native American Graves Protection and Repatriation Act (NAGPRA) by changing the definition of the term “Indian tribe.”
The interim final rule resolves the discrepancy between the NAGPRA regulations, which used the definition of “Indian tribe” in the Indian Self-Determination and Education Assistance Act (ISDEAA), and the definition in the statutory language of NAGPRA. The difference between these two definitions is that the ISDEAA definition includes regional and village corporations “as defined in or established pursuant to the Alaska Native Claims Settlement Act (ANCSA),” while the NAGPRA definition does not include such corporations. The interim final rule resolves this discrepancy by deleting the definition of “Indian tribe” from the NAGPRA regulations, thus only the statutory definition will be used in implementing NAGPRA. In other words, ANCSA regional and village corporations are no longer treated as Indian tribes for purposes of NAGPRA.
For additional information see our General Memorandum 11-090(July 29, 2011).
• EPA Rules for New Source Review Permits in Indian Country. On July 1, 2011, the Environmental Protection Agency issued final rules entitled “Review of New Sources and Modifications in Indian Country.” The rules constitute a Federal Implementation Plan under the Clean Air Act which includes two New Source Review regulations for the protection of air resources in Indian Country.
The first rule applies to new and modified minor stationary sources of air pollutants (minor sources) and to minor modifications at existing major stationary sources (major sources) located anywhere in Indian Country. The second rule applies to new and modified major sources located in parts of Indian Country that are designated as not attaining the National Ambient Air Quality Standards, and is referred to as the “nonattainment major NSR rule.”
For additional information see our General Memorandum 11-088 (July 15, 2011).
• White House Rural Council. On June 9, 2011, President Obama signed Executive Order 13575 establishing the White House Rural Council. The Council is charged with developing policy recommendations that better coordinate federal programs government-wide to strengthen rural communities and promote economic growth. In addition, the Council is to coordinate and increase the effectiveness of federal engagement with rural stakeholders on the needs of rural America. “Rural stakeholders” include tribal governments.
For additional information see our General Memorandum 11-079 (June 17, 2011).
• EPA Policy on Consultation and Coordination with Indian Tribes. On May 5, 2011, the Environmental Protection Agency (EPA) issued its final EPA Policy on Consultation and Coordination with Indian Tribes. The EPA intends for the Policy to establish consistent practices for its program and regional offices while providing flexibility for each office to proceed with consultation in a manner that is appropriate for the situation and accommodates the preferences of tribal governments. The Policy lists a number of guiding principles, including working directly with federally recognized tribes as sovereign entities, and recognizing the federal government’s trust responsibility. It stresses that notification should occur sufficiently early in the process to allow for meaningful input, and specifically provides that tribal officials may request consultation on matters not identified by EPA.
For additional information see our General Memorandum 11-056 (May 13, 2011).
• Food Distribution Program on Indian Reservations Rule. On April 6, 2011, the Department of Agriculture issued a final rule that will bring consistency between the Food Distribution Program on Indian Reservations (FDPIR) and the Supplemental Nutrition Assistance Program (SNAP, formerly the Food Stamp Program). Among the changes to the FDPIR are: elimination of the maximum dollar limit of the dependent care deduction, clarification of which current resource exclusions are or are not allowable, and clarification that FDPIR income eligibility regulations refer to the SNAP net monthly income standard rather than the SNAP gross monthly income standard.
For additional information see our General Memorandum 11-044 (April 15, 2011).
• Memorandum of Agreement on Alcohol and Substance Abuse Prevention. On March 23, 2011, the Indian Health Service (IHS) published a notice of amendments to the Memorandum of Agreement between IHS and the Department of Interior regarding coordination of efforts to prevent alcohol and substance abuse in Indian Country.
The amendments to the Indian Health Care Improvement Act contained in the Patient Protection and Affordable Care Act required that such a memorandum – or changes to an existing memorandum – be finalized within one year of enactment.
For additional information see our General Memorandum 11-036 (March 25, 2011).
ECONOMIC DEVELOPMENT AND TAX RELATED LEGISLATION
HOUSE OR SENATE CONSIDERATION
• Indian Tribal Trade and Investment Demonstration Project Act, HR 2362. On July, 23, 2012, by a vote of 222 yeas to 160 nays, the House failed to reach the 2/3 majority of votes needed to suspend the rules and pass HR 2362 (H. Rept. 112-451). The bill was sponsored by Representative Cole (R-OK) and would have allowed a number of tribes or tribal consortia to lease land held in trust without the Secretary of the Interior’s approval if the lease: (1) furthered economic, community, or business development with a Turkish entity; (2) was entered into within one year of the bill’s enactment; (3) was not for mineral exploration, development, or extraction; (4) did not include land held in trust for an individual Indian; (5) was executed under tribal regulations approved by the Secretary; and (6) had a term that did not exceed 25 years (but could be renewed for up to two terms).
• Native 8(a) Threshold Limit Amendment, H. Amdt. 401. On June 2, 2011, Representative Speier (D-CA) offered H. Amdt. 401 as an amendment to HR 2107 (a Department of Defense appropriations and continuing appropriations bill enacted as PL 112-33). H. Amdt. 401 would have prohibited the awarding of noncompetitively bid contract to an Alaska Native Corporation, Indian tribe, or Native Hawaiian organization in an amount in excess of the competitive bidding threshold ($6.5 million) to which other section 8 businesses are subject. However, a point of order was raised and sustained against this amendment, which was not approved.
• Marketplace Fairness Act, S 1832/HR 3179. On November 9, 2011, Senator Enzi (R-WY) introduced S 1832 which was referred to the Committee on Finance. S 1832 would have enabled states to collect sales and use taxes on purchases made from out-of-state sellers, usually over the internet. The proposed legislation would have had implications for sales made to purchasers in Indian Country and by sellers in Indian Country. S 1832 represented a hybrid approach to the requirements proposed in the Marketplace Equity Act (HR 3179) and the Main Street Fairness Act (HR 2701/S 1452). S 1832 would have authorized states to impose sales and use tax collection responsibilities on sales sourced to that state if the state either adopted the Streamlined Sales and Use Tax Agreement (similar to HR 2701/S 1452) or implemented minimum simplification requirements (similar to HR 3197).
Only HR 3179 included any provision that dealt expressly with tribes or Indian Country. HR 3179 defined “state” to include “any Indian country.” This provision would appear to have allowed a tribe to collect sales and use taxes on internet sales to its reservation provided it met the tax simplification provisions of the legislation. HR 3197 did not expressly state, however, whether the state tax would also be collected by the state on the same sale. None of the bills contained express provisions for sales to tribal members on reservations nor did they deal with existing tribal-state tax agreements. Similar legislation introduced in previous Congresses had included additional tribal provisions.
On October 13, 2011, Representative Womack (R-AR) introduced HR 3179 which was referred to the Committee on the Judiciary. On July 29, 2011, Representative Conyers (D-MI) introduced HR 2701 which was referred to the Committee on the Judiciary and on the same day its companion bill, S 1452, was introduced by Senator Durbin (D-IL) and referred to the Committee on Finance.
For additional information, see our General Memorandum 12-097 (August 3, 2012).
• Smuggled Tobacco Prevention Act (STOP Act), S 1706/HR 3186. On October 13, 2011, Senator Lautenberg (D-NJ) introduced S 1706, which was referred to the Committee on Finance. Some version of the STOP Act has been introduced in each of the past Congresses to little avail. S 1706 would have created a federal system to track the “chain of custody” for every package of cigarettes sold in the United States and would have opened up all wholesalers’ and retailers’ records for inspection. S 1706 would have required permits under the Alcohol Tobacco Tax and Trade Bureau for tobacco wholesalers and tobacco machine businesses to operate. In addition, new criminal penalties would be added for violations and civil penalties would be increased considerably. Although a new section entitled “Exclusions Regarding Indian Tribes and Tribal Matters” was added to the 112th Congress’s iteration of the bill; the restrictions, record keeping burdens, and disclosure requirements would have still applied to tribes and would have opened up tribal records for state inspection.
On the same day, Representative Doggett (D-TX) introduced the companion measure (HR 3186). It was referred to the Committee on Ways and Means.
• SAFE Lending Act, S 3426/ HR 6483. On July 24, 2012, Senator Merkley (D-OR) introduced S 3426, the Stopping Abuse and Fraud in Electronic Lending Act (SAFE Lending Act), which was referred to the Committee on Banking, Housing, and Urban Affairs. S 3426 would have amended the Truth in Lending Act to require any small-dollar (less than $5,000) consumer credit transactions made over the internet, or other electronic communication, to comply with the laws of the state in which the consumer resided with respect to annual percentage rates, interest, fees, and charges. In addition, it would have prohibited persons engaged in the business of facilitating applications for small-dollar consumer credit from doing so unless that person was directly extending the small-dollar consumer credit to the consumer. Finally, S 3426 would have directed the Government Accountability Office to study the availability of capital on Indian reservations and the impact that small-dollar consumer credit extended through internet and non-internet means to members of Indian tribes have had upon economic opportunity for tribal members.
On September 21, 2012, Representative Bonamici (D-OR) introduced the companion measure (HR 6483). It was referred to the Committee on Financial Services.
• Wholesome Food Charitable Contributions to Tribes, HR 518/S 3299. On January 26, 2011, Representative Young (R-AK) introduced HR 518 which was referred to the Committee on Way and Means. HR 518 would have amended the tax code to allow Indian tribes to receive donations of “apparently wholesome food” as defined under the Bill Emerson Good Samaritan Food Donation Act, provided that the use of the food would be related to “the exercise of an essential governmental function of the Indian tribal government.”
On June 14, 2012, Senator Murkowski (R-AK) introduced the companion measure (S 3299) which was referred to the Committee on Finance.
• Alaska Native Corporations Section 8(a) Preference Elimination, S 236/HR 598. On January 31, 2011, Senator McCaskill (D-MO) introduced S 236 which was referred to the Committee on Small Business and Entrepreneurship. S 236 would have amended both the Small Business Act and Alaska Native Claims Settlement Act to: exclude from the definition of “Indian tribe” any Alaska Native Corporation (ANC) or Alaska Native Village (ANV); require that an ANC or ANV provide proof of economic or social disadvantage to the SBA for purposes of eligibility for procurement contracts; and prohibit the SBA Administrator from extending or waiving the time limitations applicable to participants in the small business capital ownership development program for small businesses owned by an ANC or ANV. Additionally, the bill would have made ANCs and ANVs subject to the same dollar amount limits for sole-source contracts as other 8(a) program participants and would have required ANCs or ANVs to file annual reports detailing their both their yearly revenue and the amount of their revenues paid to shareholders.
On February 9, 2011, Representative Thompson (D-MS) introduced the companion measure which was referred to the Committees on Small Business and Natural Resources.
For additional information, see our General Memorandum 11-021 (February 11, 2011).
• FAIR CREDIT Act, HR 1992. On May 25, 2011, Representative Grijalva (D-AZ) introduced HR 1992, the Fair Allocation of Internal Revenue Credit for Renewable Electricity Distribution by Indian Tribes Act (FAIR CREDIT Act), which was referred to the Committee on Ways and Means. HR 1992 would have amended the Internal Revenue Code to allow an Indian tribe that owns a facility which uses a renewable energy resource to produce electricity to assign to any other person who has such an ownership interest in such facility any portion of the production from the facility for purposes of the renewable electricity production tax credit. Essentially, this bill would have allowed Indian tribes to sell the renewable electricity production tax credits for which they are eligible to investors.
• Tribal Labor Sovereignty Act, HR 2335. On June 23, 2011 Representative Noem (R-SD) introduced HR 2335, which was referred to the Committee on Education and the Workforce. HR 2335 would have exempted all tribal enterprises from the scope of the National Labor Relations Act (NLRA). Currently, the list of entities excluded from the definition of “employer” under the NLRA includes: “… the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof … .” This amendment to the NLRA would have treated tribal governments in a similar manner as state governments and the federal government. The text of this bill was also introduced two months earlier as TITLE I of HR 1599 (see below).
• Indian Country Economic Development Act, HR 1599. On April 14, 2011, Representative Cole (R-OK) introduced HR 1599, which was referred to the Committees on: Ways and Means; Education and the Workforce; Natural Resources; Financial Services; and Judiciary. The concept behind HR 1599 was to take a multipronged approach to addressing current policies which inhibit economic growth and development in Indian Country. Many of these provisions would have amended current law to treat tribal governments in a similar manner as state governments. Title IX of the bill, “Indian Tribal Development” would have created a program similar to the “477 program” which would have allowed tribes to combine funds from many federal agencies into an integrated plan with a consolidated budget. The bill was divided into the following titles:
o TITLE I–AMENDMENT TO NATIONAL LABOR RELATIONS ACT
o TITLE II–FICA FORGIVENESS ON STUDENT LOANS
o TITLE III–STUDENT LOAN REPAYMENTS EXCLUDED FROM GROSS INCOME
o TITLE IV–INDIAN TRIBAL GOVERNMENT PENSION PLANS
o TITLE V–ISSUANCE OF TAX-EXEMPT BONDS
o TITLE VI–TAX CREDIT FOR TECH COMPANIES IN INDIAN COUNTRY
o TITLE VII–TRIBAL LEASES
o TITLE VIII–EXEMPTIONS FROM TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
o TITLE IX–INDIAN TRIBAL DEVELOPMENT
For additional information, see our General Memorandum 11-062 (May 20, 2011).
• Indian Reservation Bank Branch Act, S 62. On January 25, 2011, Senator Inouye (D-HI) introduced S 62 which was referred to the Committee on Banking, Housing, and Urban Affairs. S 62 would have amended the Federal Deposit Insurance Act to modify requirements relating to the establishment and location (branching) of both state and national banks on Indian reservations, encouraging economic development by increasing tribes’ access to a wider array of banking services and capital.
• Native American Economic Advisory Council Act, S 61. On January 25, 2011, Senator Inouye (D-HI) introduced S 61 which would have established the Native American Economic Advisory Council. The bill would have required the Council to prepare a compilation of successful business enterprises and joint ventures conducted by Native American organizations, and periodically sponsor conferences and training workshops on Native American business activities. Additionally, the bill would have required the Director of the Office of Management and Budget, in preparing the President’s comments and recommendations to Congress about proposed legislation, to include an assessment of the legislation’s economic impact on Native Americans.
HOUSE OR SENATE CONSIDERATION
• Santa Fe Indian School Economic Development Authorization, HR 1556. On June 18, 2012, the House approved legislation (HR 1556, H. Rept. 112-306) which would amend the law which transferred Santa Fe Indian School lands into trust to allow those lands to be used for economic development purposes. Current language under the Omnibus Indian Advancement Act (PL 106-568) restricts use of the Santa Fe Indian School lands to educational, health-related, or cultural purposes. The 19 Pueblos that operate the Santa Fe Indian School seek to generate income to further academic programs. Representative Lujan (D-NM) introduced HR 1556.
• Esther Martinez Language Preservation Reauthorization Act, S 3546/HR 6399. On September 20, 2012, the Senate Committee on Indian Affairs favorably reported S 3546, the Esther Martinez Language Preservation Reauthorization Act. The Esther Martinez Act (PL 109-394) provides grants administered by the Administration for Native Americans for the preservation of Native languages through Native American language nests; Native American language survival schools; and Native American language restoration programs. The bill would have extended authorization of the Esther Martinez Act for an additional five years (through
S 3546 was introduced by Senator Johnson (D-SD). Representative Heinrich (D-NM), along with Representatives Lujan (D-NM) and Pearce (R-NM) introduced a companion measure (HR 6399).
• Elementary and Secondary Education Reauthorization Act, S 3578/HR 3989/ HR3990. On September 20, 2012, the Senate Health, Education, Labor, and Pensions Committee reported legislation that would reauthorize the Elementary and Secondary Education Act (ESEA; S 3578, S. Rept. 112-221). The Committee originally held a mark-up and approved to be reported a draft version of the bill on October 20, 2011. S 3578 was introduced by Committee Chairman Harkin (D-IA).
The bill would have replaced the No Child Left Behind Act’s accountability system that requires all students to be proficient in math and reading by 2014 with authorization of state-designed accountability systems, based on students showing “continuous improvement.” Other provisions would have required a revised process for identifying and addressing struggling schools (schools would be designated as Achievement Gap Schools or the Persistently Low-Achieving Schools), and require states to develop new teacher and principal evaluation systems with at least four levels of ratings. Title VII of the bill addresses Indian, Native Hawaiian, and Alaska Native Education. Among the proposed changes in Title VII are: an exemption for American Indian/Alaska Native/Native Hawaiian native language teachers from the teacher certification requirements and the authority to use funds to support the preservation, reclamation and restoration of Native languages.
The House Education and Workforce Committee approved—on party-line votes—two ESEA reauthorization-related bills which were introduced by Committee Chairman Kline (R-MN). The Student Success Act (HR 3989, H. Rept. 112-458) would have eliminated the NCLB accountability system, and the Encouraging Innovation and Effective Teachers Act (HR 3990, H. Rept. 112-459) which would have required states to implement teacher evaluation systems that would take into consideration student test scores.
• Workforce Investment Improvement Act of 2012, HR 4297. On June 7, 2012, the House Education and Workforce Committee approved on a party line vote HR 4297, legislation to reauthorize the Workforce Investment Act. The bill, introduced by Higher Education and Workforce Subcommittee Chair Foxx (R-NC), would have repealed the authorization for 27 job training programs and consolidated their funding into a single Workforce Investment Fund. Among the programs for which authorization would have been repealed are the Native American Employment and Training program, Job Corps, and YouthBuild. The bill as introduced would have authorized, but not required, the Secretary of Labor to provide up to one percent of funds for tribes and Native Hawaiian organizations. The bill was amended in Committee to increase the allocation up to two percent. The legislation faces strong tribal opposition. There was no comparable Senate bill. Education and Workforce Committee Chairman Kline (R-MN) has indicated that he would like to quickly move legislation similar to HR 4297 in the current (113th) Congress.
For additional information see our General Memorandum 12-073 (June 15, 2012).
• Native CLASS Act, S 1262/HR 3568/HR 3569. On October 20, 2011, the Senate Committee on Indian Affairs adopted an amended version of S 1262 (S. Rept. 112-262), the “Native Culture, Language, and Access for Success in Schools (CLASS) Act.” The Native CLASS bill, introduced by Senator Akaka (D-HI), along with Senators Inouye (D-HI) and Johnson (D-SD), is a comprehensive bill that would address the education of Native American students wherever they are being educated. S 1262 was developed with the support and input of several Native organizations and addresses students in Bureau of Indian Education (BIE) schools, in public or charter schools, and in tribally controlled colleges.
Going beyond offering a “fix” to the problems identified with No Child Left Behind (NCLB) Act, S 1262 offered a new framework for viewing Native education. The bill’s provisions included:
o A new section to Title III of the ESEA dedicated to improving the academic success of Indian students through Native American language instruction, developing the instructional courses and materials for such instruction, providing teacher training, and providing for the involvement of the parents or legal guardians of students in the programs
o Establishment of a pilot project to authorize up to five Indian tribes per year to be eligible to receive grants to administer State education agency functions for schools that meet the eligibility criteria set forth in this provision
o Authorization of a new Indian School Turn Around Program that would allow a tribe or tribal organization to turn around low-performing public schools operated by a local education agency on tribal lands
o A deadline for action and requiring approval of a tribally-proposed alternative definition of adequate yearly progress by the Secretary of the Interior (rather than the current process of approval by the Secretaries of Education and the Interior)
o Amendment to the American Recovery and Reinvestment Act to require that of the amounts appropriated to carry out Section 14006 (“state incentive grants”) and Section 14007 (“the innovation fund”), the Secretary of Education must allocate at least one percent, but not more than five percent, to schools funded by the BIE
o Establishment of a Tribal Education Policy Advisory Group to advise the Secretary of the Interior and Assistant Secretary on all matters pertaining to the BIE school system
o Provision for the training and recruiting of teachers and principals to serve “high-need educational agencies” and amending Title II of the ESEA to bring all BIE-funded schools within this definition; authorizing a five percent set aside to the Secretary of the Interior for distribution to BIE-funded schools
o Requirement that the Secretary of Education establish a system to improve the collection, coordination, and electronic exchange of Indian student records
o Authorization for a tribal education agency (i.e., the agency or administrative unit of an Indian tribe authorized to have primary responsibility for regulating early learning, elementary, and secondary education on tribal lands) to enter into an agreement with the appropriate state education agency, subject to the approval of the Secretary of Education, to assume the State’s responsibility with respect to one or more identified programs in schools located on tribal lands.
Representatives Kildee (D-MI) and Baca (D-CA) each introduced companion versions of the “Native Culture, Language, and Access for Success in Schools (CLASS) Act,” HR 3568 and HR 3569, respectively, on December 6, 2011. The text of the House bills are identical to S 1262 as introduced.
• Native American Indian Education Act, S 3504/HR 3040/S 484. On August 2, 2012, Senator Bennet (D-CO) introduced the Native American Indian Education Act (S 3504), legislation to provide federal funds to eligible institutions of higher education that provide tuition-free education for Native American students. Eligible institutions are limited to four-year Native American-serving non-tribal institutions, which are Fort Lewis College in Durango, Colorado, and University of Minnesota-Morris. The cost of the program would be offset through a $15 million rescission in unobligated discretionary funds. On August 22, 2012, the Senate Committee on Health, Education, Labor, and Pensions (HELP Committee) held a field hearing on S 3504.
The companion bill (HR 3040) was introduced in September 2011 by Representative Tipton (R-CO), which was referred to the House Committees on Education and Workforce, and Appropriations.
On March 3, 2011, Senators Bennet (D-CO) and Udall (D-CO) introduced S 484, legislation to provide relief to Fort Lewis College in Colorado resulting from the mandate in the college’s charter which requires them to waive tuition for Indian students. The Findings section of the bill states that under the condition of the 1910 transfer of the land and buildings from the federal government, Indian student tuition is to be waived. Indian students – coming from 34 states – represented twenty percent of the college’s students in 2010-2011. The bill, which was referred to the Committee on Health, Education, Labor, and Pensions, would authorize “such sums as are necessary.”
• Chemawa Indian School Trust Transfer and Self-Determination Act, HR 3878. On February 1, 2012, Representative Schrader (D-OR) introduced HR 3878, legislation which would authorize the Secretary of the Interior to take into trust the land on which the Chemawa Indian School is located, on behalf of nine federally recognized Indian tribes. The bill would, among other things, require the establishment of a Chemawa Indian School Board of Trustees; continue use of the property for educational and cultural benefits; and prohibit the property from being used for gaming purposes. If the property was no longer needed for Indian education purposes, the Board would have to ensure it would be used for the collective benefit of the Oregon tribes.
• School Accountability Improvements Act, S 1724. On October 17, 2011, Senator Murkowski (R-AK) introduced legislation which would amend the Elementary and Secondary Education Act to address issues related to certain staffing, accountability, and other requirements, particularly in small, rural and remote school locations. Of interest to tribal schools and American Indian/Alaska Native students is that S 1724 would allow schools with Native American language programs some flexibility in determining Adequate Yearly Progress (AYP) if the state assessment test at the third grade level cannot be administered in that Native language.
S 1724 would also: 1) provide greater flexibility to a local educational agency’s highly qualified teacher requirements by allowing use of a Highly Qualified teacher through distance delivery if assisted by an on-site teacher Highly Qualified in another subject area; 2) allow states to use the “growth model” for calculating AYP; 3) prohibit the restructuring of a school or district if failure to achieve AYP is attributable to results for limited English proficient students and/or students with disabilities, and the school shows by growth model results that those subgroups are on track to being proficient; 4) expand the use of funds currently provided for training and recruitment of teachers and principals to allow use for the development of parent engagement strategies and training for education personnel in effective communications with parents; and 5) except teachers of native language, culture, or history from the highly qualified teacher requirements, while allowing states to require a local tribe or tribal organization to verify the teacher’s competency.
The bill was referred to the Senate Health, Education, Labor, and Pensions Committee.
• BUILD Act for Native Education, S 1519. On September 7, 2011, Senator Udall (D-NM) introduced S 1519, the “Building Upon Unique Indian Learning and Development (BUILD) Act.” S 1519 addressed many of the same concerns raised in the Native CLASS Act (S 1262), while offering several new approaches to enhancing Native education. The main provisions of the BUILD Act include:
o In-School Facility Innovation Program Contest open to institutions of higher learning, including tribal colleges and universities, to generate innovative solutions to school facility deficiencies in the Bureau of Indian Education (BIE) system, and other tribal schools.
o Joint oversight board of Departments of the Interior and Education which would be responsible for coordinating technical assistance, resource distribution and capacity building between the two Departments on education of Native American students.
o Improved support for teachers and administrators at schools for Native American students through grants to eligible institutions to develop educational programs to expand the number of teachers and administrators qualified to teach in schools serving Native students (with priority for grants to tribal colleges and universities), and provide incentives for teachers and principals who commit to working in high-need, high-poverty tribal schools, including scholarships, loan forgiveness, incentive pay, or housing allowances.
o ESEA amendments in support of Native Education, including requiring states to develop “standards-based assessments” that take into account diverse learning styles which may then be used in place of more generally applicable state assessments; provide that the current ESEA definition of “highly qualified teacher” would not apply to teachers of Native languages in lieu of state-devised alternative licensure or certification requirements for teachers of Native languages; authorize a grant program to ensure the survival and vitality of Native languages that would be available for (1) community Native American language projects including Native American language “nests,” i.e., site-based educational programs for children ages seven and younger, and their parents; (2) language survival schools for elementary and secondary level students; (3) language restoration programs, including immersion programs and language and culture camps; (4) teacher training programs; and (5) the development of curricula materials for use in teaching a Native language.
o Increased access to funding for BIE-funded and other tribal schools to grants, contracts, or other assistance which are otherwise available to elementary and secondary schools or early childhood and pre-kindergarten programs.
o Establish “Safe and Healthy School Programs” to improve school environments and enhance student skill development with a focus on prevention of substance abuse, suicide, violence, pregnancy and obesity; the establishment of healthy eating programs; anger and conflict management; and drop-out prevention.
o Amended definition for “Tribal School” under the ESEA to mean a BIE-funded school; an education program operated by a tribe or tribal organization; a school located on Indian lands; or a school where the predominance of students are Native American or Alaska Native. Thus, a tribal school would include certain local public schools, which unlike BIE-funded schools, have access to state and local funding.
• Land-In-Trust Schools and Local Governments Equitable Compensation Act, HR 1882/S 988. On May 12, 2011, legislation was introduced to authorize full compensation to local educational agencies and local governments for loss of tax revenues when land is taken into trust on or after October 1, 2008, for a federally recognized tribe or an individual Indian. The compensation amount may be waived, reduced or adjusted if all applicable parties agree to do so. Compensation amounts would be paid annually from the general fund of the Treasury (not appropriated) and transferred to the Department of Interior.
Representative Owens (D-NY) introduced the House version (HR 1882). Senator Schumer (D-NY) introduced S 988, which was referred to the Senate Committee on Energy and Natural Resources.
• Indian School Bus Route Safety Reauthorization Act, S 885. On May 4, 2011, Senator Bingaman (D-NM) introduced legislation (S 885) which would reauthorize through FY 2017 a federal program which provides funds to counties in New Mexico, Arizona, and Utah for road maintenance and construction on non-reservation roads that carry Indian children to and from school or a Head Start program.
S 885 was referred to Committee on Environment and Public Works.
• Indian Tribal Energy Development and Self-Determination Act Amendments, S 1684. On September 13, 2012, the Committee on Indian Affairs amended and favorably reported S 1684 (S. Rept. 112-263). S 1684 was introduced by Senator Barrasso (R-WY) on October 12, 2011, and would have amended the Indian Tribal Energy Development and Self-Determination Act with regard to improving tribal energy resources agreements (TERAs) and replacing tribal energy resource development organizations with tribal energy development organizations. A TERAs is a mechanism which was designed to streamline the negotiation of leases, rights-of-way, and business agreements on tribal trust or restricted land; however, they have been cumbersome for tribes to get through the approval process. S 1684 would have deemed all TERAs approved by the Secretary of Interior after 270 days if no action was taken and would have deemed that a tribe carrying out a Self-Determination contract or Self-Governance compact was a sufficient demonstration of that tribe’s capacity to regulate energy resources pursuant to a TERA.
Sections under the “Miscellaneous” title the bill included: Hydropower Licensing; Biomass Demonstration Project; and Weatherization Assistance Program. These sections would have: amended the Federal Power Act to include Indian tribes in the preference that states and municipalities are given for hydroelectric project licenses issued by the Federal Energy Regulatory Commission; amended the Tribal Forest Protection Act to establish a Tribal Biomass Demonstration Project; and amended the Energy Conservation and Production Act to change the process through which tribes can seek direct funding from the Department of Energy Weatherization Assistance Program.
For additional information, see our General Memorandum 11-121 (October 25, 2011).
• Native American Energy Act, HR 3973. On May 16, 2012, the House Natural Resources Committee amended and favorably reported HR 3973 (H. Rept. 112-692). HR 3973 was introduced by Representative Young (R-AK) on February 7, 2012 and would have: sped up the Department of the Interior’s (DOI) appraisal process for determining fair market value of lands or tribal assets; directed the Secretary of Interior to implement a uniform system of reference numbers and tracking systems for oil and gas wells; and amended the National Environmental Policy Act to make significant changes to the review process when an environmental impact statement is required for a proposed federal action on Indian lands. In addition, the bill would have: created at least five regional Indian Energy Development Offices within DOI responsible for streamlining the oil and gas permitting process by serving as a “one stop” shop for the rapid processing of all applications, permits, and licenses that tribes need for energy projects; prevented the Bureau of Land Management (BLM) from collecting certain fees from tribes; and would have discouraged lawsuits or administrative challenges brought to block or delay tribal energy projects.
During the May 16 Committee markup, the bill was amended by Representative Young to exempt Indian lands from rules governing hydraulic fracturing unless a tribe first consents to the rules. This amendment was in response to a proposed rule entitled “Oil and Gas; Well Stimulation, Including Hydraulic Fracturing, on Federal and Indian Lands” published in the FEDERAL REGISTER by the BLM to update regulations governing oil and gas operations on public and Indian lands with regard to hydraulic fracturing.
For further information, see our General Memoranda 12-054 (April 20, 2012) and 12-068 (May 25, 2012).
• Federal Lands Energy Regulatory Certainty Act, HR 6235. On August 8, 2012, Representative Flores (R-TX) introduced HR 6235, legislation which was in response to the proposed Bureau of Land Management rule regarding hydraulic fracturing on federal and Indian lands. HR 6235 would have barred the Secretary of the Interior from taking any action to finalize or implement provisions of the proposed rule until a ten-year study on the projected effects of the proposed rule was completed.
ENVIRONMENT AND NATURAL RESOURCES LEGISLATION
HOUSE OR SENATE CONSIDERATION
• Sportsmen’s Act, S 3525. On November 26, 2012, the Senate, after considering a number of amendments to S 3525, pulled the bill from the Senate floor. S 3525, introduced on September 10, 2012, by Senator Tester (D-MT), had not gone through the committee process when it was brought to the Senate floor. Rather, it was an amalgamation of a number of bills related to land and water conservation programs; hunting and fishing rights; the eradication of certain invasive species and the protection of certain threatened species. Of particular interest to tribes, S 3525 would have amended the Migratory Bird Hunting and Conservation Stamp Act to allow the Secretary of the Interior to set the amount to be collected for each Federal Migratory Bird Hunting and Conservation Stamp but would have permitted the Secretary to waive requirements under the Act relating to the prohibition on the taking of migratory waterfowl “for certain individuals deemed appropriate.” In addition, S 3525 would have created a National Fish Habitat Board and would have reserved seats on the board for representatives from Indian tribes.
• Conservation and Economic Growth Act, HR 2578/HR 1505. On June 19, 2012, the House of Representatives passed HR 2578 by a vote of 232 to 188. HR 2578 contained, among others things, the text of HR 1505 (H. Rept. 112-448), the National Security and Federal Lands Protection Act. HR 1505 would have granted broad and controversial authority to the Customs and Border Protection Agency on federal lands within 100 miles of the international land borders of the United States and (as initially drafted) would have also waived 36 environmental and historic preservation laws. This list was later narrowed to 16 laws by the bill’s sponsor, Representative Rob Bishop (R-UT). The amendment that narrowed the list of laws did not add an exception for tribal lands but did add a provision stating that “Nothing in this section supersedes, replaces, negates, or diminishes treaties or other agreements between the United States and Indian tribes.” It was unclear what impact the amendment would have had, but it appeared that the bill would have still largely applied to tribal lands within 100 miles of an international border. Sacred places or other areas of cultural significance located on non-tribal federal lands within 100 miles of a border would also be included within the reach of HR 2578.
HR 1505 was introduced by Representative Bishop on April 13, 2011 and referred to the Committees on Natural Resources; Agriculture; and Homeland Security. The Natural Resources Committee marked up HR 1505 (H Rpt. 112-448, Part I) and Representative Grijalva (D-AZ) offered an amendment to exempt tribal lands from the application of the bill, but it was defeated.
For additional information, see our General Memorandum 12-080 (June 29, 2012).
• Chimney Rock National Monument Establishment Act, HR 2621/S 508. On May 16, 2012, the House approved under suspension of the rules HR 2621 (H. Rept. 112-473). HR 2621, introduced by Representative Tipton (R-CO), would have designated the Chimney Rock Archeological Area in the San Juan National Forest in Colorado as the Chimney Rock National Monument and would have allowed for continued use of the Monument by Indian tribes for traditional ceremonies and as a source of traditional plants and other materials. The Chimney Rock Archeological Area is surrounded by the Southern Ute Indian Reservation but is also considered culturally and spiritually significant by the Pueblo tribes of New Mexico.
On March 8, 2011, Senator Bennet (D-CO) introduced the companion bill, S 508, which was referred to the Committee on Energy and Natural Resources.
On September 21, 2012, the Chimney Rock National Monument was established by Presidential Proclamation. See the section on ADMINISTRATION ACTION/ FINAL REGULATIONS.
• Surface Mining Control and Reclamation Act Amendments, S 897/HR 785. On February 29, 2012, S 897 was favorably reported by the House Committee on Natural Resources after passing the Senate by Unanimous Consent (S. Rept. 112-63; H. Rept. 112-429). S 897 was originally introduced by Senator Bingaman (D-NM) on May 5, 2011, and would have amended the Surface Mining Control and Reclamation Act to “correct” the interpretation caused by amendments which were enacted in 2006. The bill would have restored to uncertified states and tribes the availability of funding for non-coal reclamation projects to pre-2006 levels, thus allowing certain unexpended and unappropriated balance amounts to be used for acid mine drainage abatement and treatment and non-coal abandoned mine land reclamation. (If a state or tribe is referred to as “uncertified” it means that they currently have backlogs of coal reclamation projects–so-called uncertified states–and are obligated under current law to use a portion of those grants exclusively for certain coal projects.)
On February 17, 2011, Representative Pearce (R-NM) introduced the companion bill, HR 785.
• Southeast Arizona Land Exchange and Conservation Act, HR 1904. On October 26, 2011, the House passed by a vote of 235 to 186 the Southeast Arizona Land Exchange and Conservation Act (HR 1904, H. Rept. 112-246). The bill would essentially transfer a sacred site area of importance to the San Carolos Apache, Yavapai and other tribes to the Resolution Copper (RC) mining company. The RC’s intended use for the land is a large-scale copper mine. The bill would direct the Secretary of Agriculture to transfer to RC (a foreign-owned entity) over 2,000 acres of U.S. Forest Service lands in the Oak Flat area, which has religious, cultural and environmental significance to several tribes, and would provide RC exemption from complying with existing federal laws, including the National Environmental Policy Act (NEPA). An amendment by Representative Lujan (D-NM) to exempt all Indian sacred and cultural sites from the land conveyance lost by a vote of 189 to 233.
Representative Gosar (R-AZ) was the sponsor of HR 1904. The Senate Committee on Energy and Natural Resources held a hearing on the bill on February 9, 2012.
• Pacific Salmon Stronghold Conservation Act, S 1401. On November 2, 2011, the Committee on Commerce, Science, and Transportation amended and favorably reported S 1401 (S. Rept. 112-140). S 1401 was introduced on July 21, 2011, by Senator Cantwell (D-WA). The stated intention of the bill was to: “… establish a comprehensive, strategic, science-based approach to wild salmon conservation … [and]… would create a structural framework to support efforts to protect and restore the healthiest remaining wild Pacific salmon stocks in North America.” S 1401 would have created the Salmon Stronghold Partnership with a Board to oversee it. The Board would have been required to include representatives from: Alaska, California, Idaho, Oregon, and Washington; Indian tribes; federal officials and non-governmental organizations.
• Migratory Bird Habitat Investment and Enhancement Act, S 2156. On July 25, 2012, the Senate Committee on Environment and Public Works marked up S 2156, legislation to amend the Migratory Bird Hunting and Conservation Stamp Act (S 2156; S Rpt. 112-216) to allow the Secretary of Interior to set the annual amount (up to $25) collected for the Migratory Bird Hunting and Conservation Stamp (also called the Duck Stamp) for a five-year period beginning in 2013. The Secretary could set an annual amount of up to $30 for each subsequent year. The Secretary of Interior would be allowed to waive the purchase of a Duck Stamp if it would have a minimal impact on the funds collected. Subsistence hunters in Alaska have advocated for a waiver of this fee. Some members of Congress are objecting to this bill on the grounds that it would represent an illegal Executive Branch tax.
• California Coastal National Monument Expansion Act, HR 4969/S 3587. On September 20, 2012, Senator Boxer (D-CA) introduced S 3587 which was referred to the Committee on Energy and Natural Resources. S 3587 would have expanded the boundary of the California Coastal National Monument (established by Presidential Proclamation 7264 and managed by the Bureau of Land Management (BLM) as part of the National Landscape Conservation System) to include the Point Arena-Stornetta public lands in Mendocino County, California which were traditionally used by the Pomo Indian tribes. The California Coastal National Monument spans much of California’s coastline and in some instances the BLM’s management of it has proved to be a hindrance to traditional hunting and fishing by tribes.
On April 27, 2012, Representative Thompson (D-CA) introduced the companion bill, (HR 4969).
• Authorized Rural Water Projects Completion Act, S 3385. On July, 16, 2012, Senator Baucus (D-MT) introduced S 3385, which was referred to the Committee on Energy and Natural Resources. S 3385 would have established a Reclamation Rural Water Construction Fund to fund the completion of authorized rural water projects. The prioritization of funding for these projects would have been based on: the need for potable water supplies in the affected rural and tribal communities, the completion status of a project, and the financial needs of the affected communities.
• Repeal Limitation on Annual Payments Under the Surface Mining Control and Reclamation Act, HR 6113/S 3514. On July 12, 2012, Representative Lummis (R-WY) introduced HR 6113 which would have amended the Surface Mining Control and Reclamation Act to repeal the $15 million limitation placed on the total annual payment to certified states or Indian tribes in connection with abandoned mine reclamation. (When a state or tribe is referred to as “certified” it means that they do not have a backlog of coal reclamation projects.)
On August 8, 2012, Senator Ezi (R-WY) introduced the companion bill (S 3514) which was referred to the Committee on Energy and Natural Resources.
• Klamath Basin Economic Restoration Act, S 1851/ HR 3398. On November 10, 2011, Senator Merkley (D-OR) introduced S 1851 which was referred to the Committee on Energy and Natural Resources. S 1851 would have approved the “Klamath Basin Restoration Agreement for the Sustainability of Public and Trust Resources and Affected Communities” and provided for the release of specified water rights claims against the United States by the Klamath Tribe, the Karuk Tribe, and the Yurok Tribe.
On the same day, Representative Thompson (D-CA) introduced the companion bill (HR 3398) which was referred to the Committees on Natural Resources and Energy and Commerce.
• Surface Mining Control and Reclamation Act Amendments Act, S 1455. On August 8, 2011, Senator Tester (D-MT) introduced S 1455 which was referred to the Committee on Energy and Natural Resources. S 1455 would have amended the Surface Mining Control and Reclamation Act to authorize a state or tribe that makes a certification (in which the Secretary of Interior concurs) to use funds to conduct an approved abandoned mine reclamation program, subject to payment of reclamation fees. It would have shielded from liability both uncertified and certified states or Indian tribes conducting an approved abandoned mine reclamation program. (When a state or tribe is referred to as “uncertified” it means that they currently have backlogs of coal reclamation projects; if they are referred to as “certified” they do not.)
• Indian Land Fractionation Report, HR 887. On March 2, 2011, Representatives Young (R-AK) and Hastings (R-WA) introduced HR 887, legislation which would have required the Secretary of Interior to undertake a comprehensive assessment of Indian land fractionation. The Secretary would have been directed to develop a plan for consolidating such lands in a manner that maximized economic development and included contracting and compacting under the Indian Self-Determination Act. The bill would have also capped the amount of attorneys’ fees in the Cobell case at $50 million. The Natural Resources Subcommittee on Indian and Alaska Native Affairs held a hearing on the bill on March 7, 2011.
FEDERAL RECOGNITION LEGISLATION
• Native Hawaiian Government Reorganization Act, S 675/HR 1250. On September 13, 2012, the Senate Committee on Indian Affairs reported S 675, the Native Hawaiian Government Reorganization Act of 2011, with a substitute amendment. The Committee first approved the bill in April 2011 but due to action by the state legislature establishing a commission to identify Native Hawaiians eligible to participate in the new indigenous governing council and government, Committee Chairman Akaka amended the bill.
As amended, S 675 would authorize a process for Native Hawaiians to form a sovereign government and would place that government on a similar footing to that enjoyed by American Indian and Alaska Native tribes. Among other things, the bill would specify that the Native Hawaiian governing entity (and Interim Governing Council prior to adoption of the organic governing documents) would be an Indian tribe. It would also prohibit Native Hawaiians or their governing entity from conducting gaming activities as a matter of claimed inherent authority or under the authority of federal law.
S 675 was sponsored by Senator Akaka (D-HI). Companion legislation (HR 1250) was introduced by Representative Hirono (D-HI) in March 2011.
For additional information see our General Memorandum 11-061 (May 20, 2011).
• Alexander Creek Recognition, HR 4194. On August 1, 2012, the House Natural Resources Committee reported legislation that would recognize the Alexander Creek Native group as a Native Village (HR 4194, H. Rept. 112-736), thus making it eligible to incorporate as a Village under the Alaska Native Settlement Claims Act and derive the benefits eligible under that status. HR 4194, introduced by Representative Young (R-AK), would require the Secretary of the Interior to negotiate an agreement with the Village to settle any land and other claim. Upon recognition, Village members would be notified that benefits received from Cook Inlet Region Incorporated (CIRI) individually as at-large shareholders would cease, and future resource payments would be paid to the Village Corporation.
• Little Shell Tribe Restoration, S 546. On July 28, 2011, the Senate Committee on Indian Affairs reported legislation that would restore recognition of the Little Shell Tribe of Chippewa Indians of Montana (S 546, S. Rept. 112-198). As he did in the 111th Congress, Senator Tester (D-MT) introduced the measure.
The bill would extend federal recognition to the state recognized tribe, which has pursued federal recognition since the 1930’s and whose petition for recognition was filed in 1978 and denied in October 2009. In addition to restoring rights, federal services and benefits, the bills would direct the Secretary to acquire trust title to 200 acres of the Tribe’s service area lands, and would provide that additional lands could be acquired in accordance with the Indian Reorganization Act.
• Lumbee Recognition, S 1218/HR 27. On July 28, 2011, the Senate Committee on Indian Affairs reported the Lumbee Recognition Act (S 1218, S. Rept. 112-200), a measure that would legislatively provide for federal recognition of the Lumbee Tribe, providing its members all services and benefits provided to Indians. The bill, sponsored by Senator Burr (R-NC), would require the Secretaries of the Interior and Health and Human Services to each submit a statement of the resources necessary for the Tribe to provide services to its members. It would also prohibit lands taken into trust for the Tribe to be used for gaming purposes.
The companion legislation (HR 27) was introduced in January 2011 by Representative McIntyre (D-NC).
• Virginia Tribes Federal Recognition Act, S 379/HR 783. On July 28, 2011, the Senate Committee on Indian Affairs reported, without amendment, the Indian Tribes of Virginia Federal Recognition Act of 2011 (S 379, S. Rept. 112-201). The bill would extend federal recognition to six state recognized tribes in Virginia—the Chickahominy Indian Tribe; Chickahominy Indian Tribe-Eastern Division; Upper Mattaponi Tribe; Rappahannock Tribe, Inc.; Monacan Indian Nation; and Nansemond Indian Tribe. It would also provide for lands to be taken into trust on behalf of the Tribes but would prohibit gaming under the Indian Gaming Regulatory Act on those lands; and would not change the applicability of section 109 of the Indian Child Welfare Act (ICWA).
Representative Moran (D-VA) introduced similar legislation, the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2011 (HR 783) in February 2011. HR 783 does not include the ICWA provision but, unlike S 379, provides that eminent domain may not be used to acquire fee or trust lands for the Tribes.
• Indian Tribal Federal Recognition Administrative Procedures Act, HR 3103. On October 5, 2011, Delegate Faleomavaega (D-AS) introduced HR 3103, legislation that would reform the federal recognition process for tribes. Under the proposal the responsibility for the federal recognition process would be transferred from the Bureau of Indian Affairs to a newly established Independent Commission on Recognition of Indian Tribes. The seven-member Commission would be appointed by the President and would be subject to Senate confirmation.
In addition to the avenue of federal recognition through the Commission, the recognition or restoration of an Indian tribe could occur via federal law, reorganization under the Indian Reorganization Act or the Alaska Indian Reorganization Act, and any final decision of a U.S. Court. The bill would apply the Indian Reorganization Act to all tribes recognized by the Commission, regardless of whether they were under federal jurisdiction on June 18, 1934.
• Duwamish Tribal Recognition Act, HR 2999. On September 9, 2011, Representative McDermott (D-WA) introduced legislation (HR 2999) which seeks to override a 2001 negative determination of the Duwamish Tribe’s recognition petition, which had overturned a proposed positive determination for acknowledgment of the Tribe made in the final days of the Clinton Administration. The bill would establish a service area and provide that lands within the service area may be taken into trust on behalf of the Tribe. The same bill was introduced in the prior Congress.
• Reaffirmation of Burt Lake Band, HR 2322. On June 23, 2011, Representative Benishek (R-MI) introduced HR 2322, the Burt Lake Band of Ottawa and Chippewa Indians Reaffirmation Act. The bill would reaffirm federal recognition for the Burt Lake Band, their eligibility for federal services, and require the Secretary to acquire certain lands in trust as the initial reservation of the Tribe. It would also set evidentiary requirements for the initial membership of the Tribe. Similar legislation was introduced in the 111th Congress.
• Muscogee Nation of Florida Recognition, S 880/ HR 2591. On May 4, 2011, Senator Nelson (D-FL) introduced S 880, legislation that would extend federal recognition to the state recognized Muscogee Nation of Florida. The bill would establish a service area and provide that the Secretary may take lands into trust for the Nation. The membership role would be determined in accordance with the criteria established in the Nation’s Ordinance 04-01-100 of February 4, 2004. Representative Miller (R-FL) introduced companion legislation (HR 2591) in July 2011.
• Mowa Band of Choctaw Indians Recognition Act, HR 766. On February 17, 2011, Representative Bonner (R-AL) introduced legislation to extend federal recognition to the Mowa Band of Choctaw Indians of Alabama. The bill would provide for lands to be taken into trust on behalf of the Tribe but prohibits the Tribe from using its recognition to assert historical land claims.
HOUSE OR SENATE CONSIDERATION
• Gila Bend Reservation Gambling Prohibition, HR 2938. On June 19, 2012, the House approved by a vote of 343-78 the Gila Bend Indian Reservation Lands Replacement Clarification Act (HR 2938). The bill, sponsored by Representative Franks (R-AZ), would make any lands purchased by the Tohono O’odham Nation (Nation), pursuant to the Gila Bend Indian Reservation Lands Replacement Act, Public Law 99-503, ineligible for gaming under the Indian Gaming Regulatory Act.
The Nation sought to have the Secretary of the Interior take 53.5 acres into trust status for gaming purposes within the City of Glendale, approximately 160 miles from the Nation’s headquarters. The bill stated that the State of Arizona, City of Glendale, and several Arizona Indian tribes opposed the Tohono O’odham Nation gaming on these lands. The bill also asserted that the Nation’s proposed casino violated existing tribal-state gaming compact and state law which limits the total number of gaming facilities in the Phoenix metropolitan area to the seven currently existing gaming facilities.
• Senate Committee on Indian Affairs Draft Internet Gaming Bill. On July 25, 2012, the Senate Committee on Indian Affairs released a discussion draft of an Indian-specific internet gaming bill, entitled the “Tribal Online Gaming Act of 2012.” The Committee requested comments from tribes and indicated that it intended to revise the bill based on tribal input.
The draft language would permit tribes to offer only internet poker. However, it would allow tribes to offer “online gaming in addition to online poker games” to the same extent as may eventually be allowed by federal law. The draft bill would allow tribes to accept bets from players located anywhere in the United States where such bets are permitted. The draft bill also would create an “Office of Tribal Online Gaming” within the Department of Commerce to regulate tribal internet gaming. Tribal online gaming licenses would be issued for five-year terms to Indian tribes once the tribal online gaming ordinance had been submitted and received approval from the Secretary of Commerce.
Unlike other internet gaming bills, the draft released by the Committee would have allowed tribes to take an active role in the regulation of tribal internet gaming. Under the terms of the draft bill net revenue generated from internet gaming would have been subject to limitations similar to those imposed by the IGRA. Importantly, the draft bill provided that it would not amend the IGRA, alter, diminish or impact any class III gaming compact.
• Alabama and Coushatta Indian Tribes of Texas Gaming Restoration, S 3654. On December 4, 2012, Senator Reid (D-NV) introduced legislation that would amend the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act (PL 100-89) to repeal the section that prohibited the Alabama-Coushatta Tribe from conducting gaming on their lands that is otherwise prohibited by the State of Texas.
• Giving Local Communities a Voice in Tribal Gaming Act, HR 4033. On February 15, 2012, Representative Sullivan (R-OK) introduced the Giving Local Communities a Voice in Tribal Gaming Act (HR 4033). The bill would have amended the Indian Gaming Regulatory Act to provide local governments veto power over approved tribe-state class III gaming compacts entered into after January 1, 2011. The bill stated:
No Class III gaming activities may commence, irrespective of an approved Tribal-State Compact, unless the elected governing body and elected executive officials of each county, city, or other general purpose political subdivision in which a class III gaming activity under the Tribal-State Compact is to occur have approved the class III gaming facility.
The relevant local government would have to raise its objection within 120 days of the compact being approved by the Department of the Interior and the National Indian Gaming Commission, or the casino site is identified, whichever is the latter.
• Off-Reservation Land Acquisition Guidance Act, S1424. On July 27, 2011, Senators McCain (R-AZ) and Kyl (R-AZ) introduced legislation that would essentially reinstate the Bush Administration policy on land-into-trust application for off-reservation gaming purposes (known as the “Artman memo” issued in 2008) that was rescinded by the Obama Administration in June 2011. S 1424, Senator McCain stated, would “codify certain fee-to-trust regulations and applicable portions of the Artman guidance document” which would provide a “clear statutory framework” for making land-into-trust determinations related to off-reservation casinos. The bill would have, among other things:
o Defined “off-reservation land”
o Required the applicant to meet a “commutable distance” standard
o Required the that the applicant’s proposed use of the land be compatible with state/local planning, zoning, and public health and safety requirements
o Required the applicant to disclose “any plan, contract, agreement, or other information relating to the use, or intended use” of the land and request that the Office of Indian Gaming provide an that opinion the off-reservation land is eligible for gaming
o Required the Secretary of the Interior to assess and report on 1) the benefits to the applicant tribe, and 2) the concerns raised by the state/local government (which must be adequately addressed by the applicant tribe in order for the application to be successful)
• Lytton Rancheria Amendment, S 872. On May 3, 2011, Senator Feinstein (D-CA) introduced legislation which would modify the date on which certain lands of the Lytton Rancheria of California was deemed to be held in trust for the purposes of gaming (S 872). The legislation would hold the land in trust as pre-1988 land eligible for gaming pursuant to the Indian Gaming Regulatory Act (IGRA) for class II gaming, but would consider the land to be acquired in 2003 for class III gaming. This designation would force the Tribe to go through the administrative process to have land taken into trust for class III gaming under the IGRA if it chose to pursue class III gaming there. It would also prohibit the Tribe from expanding its class II gaming facilities beyond the size on the date of enactment of S 872, and limit applicability of the bill to the lands referenced in the bill and not other lands held by the Lytton Tribe or other tribes.
The Senate Committee on Indian Affairs held a hearing on the bill in November 2011.
• Tribal Gaming Eligibility Act (S 771). On April 8, 2011, Senators Feinstein (D-CA) and Kyl (R-AZ) introduced the Tribal Gaming Eligibility Act (S 771) which would add new requirements to the “settlement of a land claim,” “initial reservation,” and “restored lands” exceptions to the general prohibition on gaming lands acquired after October 17, 1988 in Section 20 of the Indian Gaming Regulatory Act (IGRA). The bill would not make any changes to the “two-part determination” exception in Section 20 of the IGRA. Under the new requirements, tribes seeking to open casinos on land acquired after the passage of the 1988 Act would have to demonstrate both a substantial, direct, modern connection, and substantial, direct, aboriginal connection to the land to be taken into trust
There were several provisions concerning instances where the new requirements would be inapplicable, e.g., where no gaming will take place: contiguous lands; lands taken into trust between October 17, 1988, and the date of enactment when the tribe has received a written determination that the land is eligible for gaming; and where a final agency decision was issued before passage of S 771. The requirements would be applicable to all pending applications on which there has not been a Secretarial determination of gaming eligibility.
HEALTH AND HUMAN SERVICES LEGISLATION
There were many bills introduced in the 112th Congress dealing with child welfare, notably issues regarding foster children, human trafficking, and criminal background checks for persons working in the child care field. Following the revelations at Penn State University, a number of bills were introduced regarding required reporting of suspected child abuse. Some of the bills would have amended the Child Abuse Prevention and Treatment Act which currently requires states to establish procedures for reporting and responding to suspected child abuse and neglect. None were enacted.
• IHS Contract Support Costs Statute of Limitations Waiver, S 2389/HR 4031. On June 28, 2012, the Senate Committee on Indian Affairs marked up S 2389, a bill introduced by Senator Begich (R-AK) which would allow certain claims for underpaid Indian Health Service contract support costs to avoid a statute of limitations defense that the United States has successfully employed. The bill would apply to claims against the Indian Health Service for FYs 1996-1999. The companion bill (HR 4031) was introduced by Representative Young (R-AK).
• Alaska Hero’s Card Act, S 1146/HR 2203. On June 6, 2011, Senator Begich (D-AK) introduced S 1146, legislation which would require the Veterans Administration (VA) to establish a pilot program to allow veterans in Alaska to receive health care benefits from non-VA facilities. To be eligible a veteran would have to be eligible for VA medical benefits and live in Alaska, specifically in a town, village or community that is not accessible by motor vehicle (as defined in 49 U.S.C. § 30102 – “a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.”) This would seem to not include snowmobiles in the definition of “motor vehicle.” The rural nature of the residency requirement would result in the Indian Health Service facilities being the most likely ones to provide health care services to veterans.
On June 15, 2011, Representative Don Young (R-AK) introduced companion legislation, (HR 2203) which was referred to the House Committee on Veterans Affairs. S 1146 was referred to the Senate Committee on Veterans Affairs.
• Better Health in the Arctic Act, S 1227. On June 16, 2011, Senator Begich (D-AK) introduced the Better Health in the Arctic Act, S 1227, which would authorize funding for the Arctic Research Commission. The Commission would work in collaboration with federal health agencies to prepare a study regarding the science base, gaps in knowledge, and strategies for the prevention and treatment of health problems in the Arctic, with a focus on Alaska. The bill would also direct the National Institutes of Health, in collaboration with other governmental agencies, private non-profit entities and the Canadian Institutes of Health Research on Indigenous Arctic People, to develop a national Arctic health science policy and establish a Desk for Arctic Health. S 1227 was referred to the Health, Education, Labor and Pensions Committee. It is the same as S 1565 introduced by Senator Begich in the 111th Congress.
• Radiation Exposure Compensation Amendments, S 791/HR 1490. On April 12, 2011, Senator Tom Udall (D-NM) and Representative Lujan (D-NM) introduced S 791 and HR 1490, legislation to address gaps in the Radiation Exposure Compensation Act which provides compensation to persons made ill working in the uranium mining industry. Senator Udall noted in his explanatory statement that the Pueblo of Laguna was home to the nation’s largest open pit uranium mine and recounted the claims filed by his father, Stewart Udall, on behalf of widows of deceased Navajo miners.
The bill would include post-1971 uranium workers as qualified claimants; expand the downwind compensation area to include New Mexico (specifically including the atomic weapons test site of Trinity), Idaho, Montana, Colorado, and Guam; authorize funding for epidemiological research on the impacts of uranium development; broaden the type of documentation allowed for filing claims; allow multiple work positions to be combined to meet work requirements; allow for compensation for kidney disease; increase from two percent to ten percent of the payment received by the claimant as the maximum attorney fee for filing a claim; and expand the geographic area covered for Department of Energy employees or contractors with regard to compensation for chronic beryllium disease.
S 791 was referred to the Judiciary Committee; HR 1490 was referred to three committees: Judiciary, Education and the Workforce, and Energy and Commerce.
• Welfare Reform Act, HR 1167/S 1904. On March 17, 2011, Representative Jordan (R-OH) introduced HR 1167, the Welfare Reform Act of 2011. Similar legislation, S 1904, was introduced by Senator DeMint (R-SC) on November 15, 2011. The bills address means-tested programs – or programs the authors apparently believe are means tested. There would be increased work requirements for some means-tested programs, including the Food Stamp program. The bill contains a lengthy list of what are described as means-tested programs, including Indian Health Services, Native American Training, Native American General Assistance, and the Native American Housing Block Grant. The bill would put a cap on total means-tested “welfare spending” when unemployment falls below a certain level; the President’s budget would be required to include information on how much “means-tested” funding is included in each of the listed programs.
HR 1167 was referred to the following committees: Ways and Means, Budget, Rules, Agriculture, and Energy and Commerce. S 1904 was referred to the Finance Committee.
Related to the issue of what constitutes “welfare programs” Senator Sessions (R-AL), Ranking Member of the Senate Budget Committee, used in a press release an October 12, 2012, Congressional Research Service (CRS) Report (Spending for Federal Benefits for People with Low Income, FY 2008-FY 2011), as the basis for saying that “welfare spending is the largest item in the federal budget.” Listed in the report are the Indian Health Service, Indian Education, Higher Education – Institutional Aid for Developing Institutions, Indian Housing Block Grants, and Indian Human Services. The CRS report notes that they included some of the programs in the report because their target population is disproportionately poor, not because they are means-tested programs. They give as examples in this category the IHS, Indian Education, and Indian Human Services.
• Indian Health Care Improvement Act, HR 536/HR 215. On February 8, 2011, Representative Cole (R-OK), introduced HR 536, legislation nearly identical to the Indian Health Care Improvement Act Amendments (IHCIA) enacted as a component of the Patient Protection and Affordable Care Act (ACA) in March 2010. The introduction was an effort to preserve the 2010 IHCIA amendments in the event the U.S. Supreme Court repealed the ACA, including its IHCIA provisions. Representative Cole also included two tribal-specific Medicare provisions from the ACA in his bill.
On February 7, 2011, Representative Young (R-AK) introduced HR 215, legislation which would have repealed the ACA while preserving the reauthorization of the IHCIA.
The House in January 2011 had voted, largely along party lines, to repeal the ACA, and so the point was being made by Representatives Cole and Young that while the supported repeal of the ACA, they also supported the IHCIA portion of that statute. Ultimately, the Supreme Court did not strike down the ACA nor did Congress repeal it.
Both bills were referred to multiple committees.
• Alaska Native Tribal Health Consortium Land Transfer Act, HR 444/S 1298. On January 25, 2011, Representative Young (R-AK) introduced HR 444, legislation that would transfer some land in Anchorage to the Alaska Native Health Consortium. The bill was referred to the Natural Resources and the Energy and Commerce Committees. Senators Murkowski (R-AK) and Begich (D-AK) introduced companion legislation, S 1298, on June 29, 2011.
• Hawaiian Homeownership Opportunity Act, S 65/HR 2648. On September 20, 2012, the Senate Committee on Indian Affairs approved the Hawaiian Homeownership Opportunity Act (S 65), legislation that would reauthorize Title VIII of the Native American Housing and Self-Determination Act (NAHASDA). S 65 would continue authorization of funding for construction of low-income housing for Native Hawaiians, and provide access to the loan guarantee program for construction of housing for Native Hawaiians.
Senator Inouye (D-HI), as in the prior Congress, introduced S 65. Representative Hirono (D-HI) introduced a companion measure (HR 2648) in July 2011, which was referred to the House Committee on Financial Services.
• Pascua Yaqui Tribe Off-Reservation Members Housing Eligibility Fix, HR 2620. On July 21, 2011, Representative Schweikert (R-AZ) introduced legislation that would deem Pascua Yaqui tribal members living in certain areas of Arizona as living on-reservation for purposes of Native American Indian Housing and Self-Determination Act housing programs. HR 2620 was referred to the House Committee on Financial Services.
HOUSE OR SENATE CONSIDERATION
• Indian Law and Order Commission Report Extension, S 2090. On July 24, 2012, the Senate passed by unanimous consent S 2090, legislation that would amend the Indian Law Enforcement Reform Act (PL 101-379) to extend by one year the time allowed for the Indian Law and Order Commission to submit the required report to Congress and the Administration. The report was to detail the Commission’s findings, conclusions, and recommendations for legislative and administrative action that would improve safety and justice in Indian Country. S 2090 was introduced by Senator Akaka (D-HI).
• Violence Against Women Act Reauthorization, S 1925/HR 4970/HR 6625. The House and Senate each passed legislation that would have amended and reauthorized the Violence Against Women Act, but there was disagreement between the two houses on the issue of tribal jurisdiction over non-Indians with regard to domestic violence crimes. Thus no reauthorization bill was enacted. The Senate bill (S 1925) was approved April 25, 2012, which included a tribal criminal jurisdiction provision that would authorize tribes to exercise “special domestic violence criminal jurisdiction” over certain domestic crimes, including over non-Indian defendants charged with those crimes. The House version, HR 4970, was approved May 16, 2012, and did not include the Senate’s tribal criminal jurisdiction provision, due to the assertions made by a number of House Republicans that it was unconstitutional.
A compromise bill (HR 6625) on the tribal jurisdiction provision was introduced on December 3, 2012, by Representative Issa (R-CA) and cosponsored by Representatives Cole (R-OK), McHenry (R-NC) and Simpson (R-ID). It included a tribal jurisdiction provision similar to that in S 1925 but also would have required additional due process safeguards for criminal defendants and provisions regarding federal court oversight. This bill gained tribal, but not House Republican leadership, support. Efforts in the last few days of the 112th Congress to reach a compromise acceptable to House leadership that Indian tribes could support failed.
Of note is that tribal-specific VAWA legislation was introduced which influenced the Senate and House national VAWA bills. Senator Akaka (D-HI) introduced the SAVE Native Women Act, S 1763, on October 31, 2011, and the Senate Committee on Indian Affairs marked up that bill on December 5, 2011 (S. Rept. 112-265). A House companion bill, HR 4154, was introduced by Representative Boren (D-OK) on March 7, 2012.
For additional information see our General Memoranda 11-136 (November 18, 2011); 12-020 (February 3, 2012); 12-062 (May 10, 2012); 12-067 (May 18, 2012); and 12-130 (December 10, 2012).
• Government Litigation Savings Act, HR 1996/S 1061. On November 17, 2011, the House Judiciary Committee amended and reported legislation that would have amended the Equal Access to Justice Act (EAJA) in ways that would discourage parties from suing the United States (HR 1996, H. Rept. 112-594). The effect of the bill would be to reduce incentive for tribes and tribal organizations, particularly smaller ones, to challenge unjustified government actions.
The Government Litigation Savings Act would save the federal government money by reducing—and in many cases eliminating—EAJA awards. The bill would limit awards to a prevailing party “who has a direct and personal interest in the adversary adjudication [or civil action] because of medical costs, property damage, denial of benefits, unpaid disbursement, fees and other expenses incurred in defense of the adjudication, interest in a policy concerning such medical costs, property damage, denial of benefits, unpaid disbursement or fees and other expenses,…” For tribes and tribal organizations, this provision could prevent recovery of fees in litigation that obtains injunctive relief—for example, orders reversing declinations under the Indian Self-Determination and Education Assistance Act.
Representative Lummis (R-WY), with co-sponsorship by Representative Young (R-AK), introduced HR 1996. The Senate version (S 1061) was introduced by Senator Barrasso (R-WY) in May 2011.
For additional information on the bills (as introduced) see our General Memorandum 11-083 (June 24, 2011).
• Racial Profiling Legislation, HR 3618/S 1670. On December 8, 2011, Representative Conyers (D-MI) introduced HR 3618, the End Racial Profiling Act. The bill would have banned racial profiling by police when making pedestrian or traffic stops, conducting investigations, or other activities that use race as a basis for taking an action. The bill was referred to the House Judiciary Committee.
HR 3618 would apply to all law enforcement agencies including tribal law enforcement. It would be enforceable by lawsuits for declaratory or injunctive relief but not money damages. Section 102 would authorize an individual or the Department of Justice to file a lawsuit for relief. Anticipating that a tribe could be sued for alleged racial profiling, Section 602 of the bill expressly states that it does not waive tribal sovereign immunity unless the tribe consents to the suit. Thus, the legislation would not allow an individual to sue a tribe as a result of alleged racial profiling by that tribe’s police department without the tribe’s consent. However, the Justice Department would be free to sue the tribe.
A Senate companion bill, S 1670, was introduced by Senator Cardin (D-MD) in October 2011 and referred to the Senate Judiciary Committee.
For additional information see our General Memorandum 12-023 (February 10, 2012).
• Alaska Safe Families and Villages Act, S 1192. On June 14, 2011, Senator Begich (D-AK) introduced the Alaska Safe Families and Villages Act, a bill designed to strengthen the ability of tribes and tribal organizations to provide law enforcement in the villages in Alaska, especially as it involves substance abuse, domestic violence, and child abuse and neglect.
S 1192 would authorize the Department of Justice to establish a Pilot Project for nine tribes in Alaska to exercise local law enforcement responsibilities over substance abuse offences and to increase their authority over domestic violence and child abuse and neglect. The bill details the various actions necessary to complete the planning phase and be certified as a Pilot Project participant. Within 30 days of certification the tribe would begin exercising jurisdiction, concurrent with the civil jurisdiction of the State over drug, alcohol or related matters and over persons of Indian or Alaska Native descent or other persons with “consensual relationships with the Indian tribe or a member of the Indian tribe.”
Funding would be authorized through the Department of Justice for the participating tribes and for employment of Alaska Village Peace Officers, both of which could be awarded via Indian self-determination contracts or compacts. The bill would authorize and encourage intergovernmental agreements among the state of Alaska, its political subdivisions, Alaska tribes and the federal government regarding employment of law enforcement-related personnel, cross-deputization matters, detention/incarceration of offenders, and jurisdictional or financial matters.
The Senate Committee on Indian Affairs held a hearing on S 1192 on November 10, 2011, with Senator Begich, the Alaska Federation of Natives and the Bristol Bay Native Association testifying in support of the bill; testifying in opposition to the bill was the Alaska Department of Public Safety.
LAND INTO TRUST LEGISLATION
• Carcieri Fix Bills, S 676/HR 1291/HR 1234. On April 7, 2011, the Senate Committee on Indian Affairs approved an amended S 676, legislation that would amend the Indian Reorganization Act of June 18, 1934 (IRA) to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian tribes, commonly referred to as the “Carcieri fix.” The bill, introduced by Senator Akaka (D-HI), would clarify that the Secretary has authority to take land into trust for all federally recognized Indian tribes regardless of when they achieved federal recognition.
The amended bill included a provision offered by Vice Chairman Barrasso (R-WY) that would require the Secretary to conduct and publish a study that “assesses the effects of the decision of the Supreme Court in the case styled Carcieri v. Salazar … on Indian tribes and tribal land; and … includes a list of each Indian tribe and parcel of tribal land affected by that decision.”
House versions of the “Carcieri fix” legislation were introduced by Representative Cole (R-OK) as HR 1291 on March 31, 2011, and HR 1234 by Representative Kildee (D-MI) on March 29, 2011. Whereas the Kildee bill was virtually identical to S 676 as introduced, the Cole bill differs in that it excepts the State of Alaska from the effect of the Carcieri fix, and defines Indian tribe to mean” … any Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian Tribe.”
• American Indian Empowerment Act, HR 3532. On November 30, 2011, Representative Young (R-AK) introduced HR 3532, the American Indian Empowerment Act of 2011. As introduced, HR 3532 would change existing federal Indian law in some key areas by:
o allowing for federally recognized Indian tribes to request that lands held in trust for the tribe be conveyed to the tribe under restricted-fee status
o providing that the change in status of the land from trust to restricted-fee land would not affect its status as “Indian country” as defined in 18 U.S.C. § 1151
o allowing a tribe to lease, or grant easements and rights-of-way, on the restricted fee lands without any approval or review from the Secretary of the Interior
o allowing tribal law to preempt any federal law regarding the use of the restricted fee land, provided that the Secretary publishes the tribal laws in the FEDERAL REGISTER within 120 days after receipt from tribe
For additional information see our General Memorandum 11-145 (December 8, 2011). A Subcommittee hearing was held February 7, 2012.
TRIBAL AND ALASKA NATIVE SPECIFIC LEGISLATION
HOUSE OR SENATE CONSIDERATION
• Quapaw Tribe Trust Claims Legislation, H. Res. 668/HR 5862. On December 19, 2012, the House approved H. Res. 668 by a vote of 398-5, thus allowing the Quapaw Tribe to pursue its claims in the U.S Court of Appeals. The Clerk of the House forwarded the resolution to the court on January 22, 2013.
By way of background, the Quapaw Tribe of Oklahoma filed suit for federal mismanagement of trust assets in 2002. The Department of the Interior in 2004 began the Quapaw Analysis Project, which was intended to lead to a mediated resolution of the Tribe’s claims. The accounting project was completed in 2010, but the Justice Department declined to participate in a mediated settlement, advising the Tribe to pursue litigation.
With no resolution of the dispute after a decade and continued efforts by the Justice Department to delay consideration of the Quapaw claims, Representatives Cole (R-OK) and Boren (D-OK) introduced two pieces of legislation on May 30, 2012. The first bill, HR 5862, directed the Secretary of the Treasury to pay, out of money not otherwise appropriated, unspecified sums to the Quapaw Tribe of Oklahoma (O-Gah-Pah) and to its tribal members pursuant to a judgment rendered by the U.S. Court of Federal Claims. They also introduced a companion bill, H. Res. 668, a rare congressional reference bill, which allowed the Tribe to pursue its claims in the U.S. Court of Federal Claims pursuant to 28 U.S.C. §§ 1492 and 2509.
The first citation, 28 U.S.C. § 1492, provides that, “Any bill, except a bill for a pension, may be referred by either House of Congress to the chief judge of the United States Court of Federal Claims for a report in conformity with section 2509 of this title.” The second citation, 28 U.S.C. §2509, provides that, “Whenever a bill, except a bill for a pension, is referred by either House of Congress to the chief judge of the United States Court of Federal Claims pursuant to section 1492 of this title, the chief judge shall designate a judge as hearing officer for the case and a panel of three judges of the court to serve as a reviewing body.”
Unlike other legislation, reference bills require passage by only one chamber of Congress to take effect. A congressional reference bill simply refers a claim against the U.S. Government to the U.S. Court of Federal Claims for consideration. The court does not issue a final ruling on the claim but, rather, submits a report to Congress with its findings and recommendations. Congress could then decide whether or not to enact a private claims bill or appropriate funds to the claimant in the interest of justice.
• Mescalero Apache Tribe Leasing Authorization Act, HR 1461/S 134. On September 19, 2012, the House passed under suspension of the rules legislation that would have authorized the Mescalero Tribe to lease or transfer water rights obtained under the State v. Lewis for terms of up to 99 years, provided the terms comply with New Mexico laws.
HR 1461 was introduced by Representative Pearce (R-NM). Senator Bingaman (D-NM) introduced a companion measure (S 134, S. Rept. 112-218), which was reported by the Senate Committee on Indian Affairs on September 19, 2012.
• Uintah and Ouray Indian Reservation Mineral Rights Exchange, HR 4027/ S 3305. On June 18, 2012, the House passed legislation that would have authorized a mineral rights exchange agreement among the Ute Tribe, the state of Utah School and Institutional Trust Land Administration and the Department of Interior (HR 4027, H. Rept. 112-509). The bill, sponsored by Representative Matheson (D-UT), provides for an acre-for-acre exchange whereby Utah would relinquish public domain subsurface mineral lands within the Uintah and Ouray Reservation southern area, to be held in trust for the Tribe, while the Tribe would relinquish subsurface acreage in the northern area that the State would lease out for oil and gas development.
In June 18, 2012, Senator Hatch (R-UT) introduced similar legislation (S 3305) which was referred to the Committee on Energy and Natural Resources. On June 15, 2011, he had introduced an earlier version of the bill as S 1209. On March 11, 2011, Representative Matheson had introduced his earlier version of the bill as HR 1053.
• Pascua Yaqui Tribe Trust Land Act, HR 4222. On June 5, 2012, the House passed legislation that would have transferred two parcels of land to the Pascua Yaqui Tribe (HR 4222, H. Rept. 112-510). Under the bill, sponsored by Representative Grijalva (D-AZ), a ten-acre parcel of Bureau of Land Management (BLM) land and a ten-acre parcel from Tucson Unified School District (TUSD) would have been transferred to the Tribe to be used for economic development purposes, but not for gaming purposes. Further, the TUSD would receive ten acres of BLM lands in exchange for the acreage to be conveyed to the Tribe.
• Sandia Pueblo Settlement Technical Amendment Act, S 2024/HR 3734. On September 20, 2012, the Senate Committee on Indian Affairs amended and reported S 2024, the Sandia Pueblo Settlement Technical Amendment Act. The bill would amend the T’uf Shur Bien Preservation Trust Area Act (PL 108-7, Act) to require that if the land exchange required by the Act is not completed within 90 days of enactment of S 2024, the Secretary of Agriculture would transfer certain National Forest lands upon receipt of certain documents and at the request of the Sandia Pueblo and the Secretary of the Interior. The National Forest land would have to be left in its natural state. To effect the transfer, the Pueblo would be required to give in exchange certain Pueblo lands and funds equal to the difference in value of the National Forest land and the Pueblo land plus compensation it would have received for right-of-way and conservation easement on another parcel.
Representative Heinrich (D-NM) introduced a companion measure (HR 3734).
• Spokane Tribe Grand Coulee Dam Equitable Compensation Settlement Act, S 1345. On September 13, 2012, the Senate Committee on Indian Affairs amended and approved S 1345, a bill to provide compensation to the Spokane Tribe for the use of land associated with the Grand Coulee project. The legislation would establish a Spokane Tribe of Indians Recovery Trust Fund over the next five years. Expenditure of funds are to be in accordance with a plan to be developed by the Tribe that promote its economic and infrastructure development, as well as education, health and social services. S 1345 was introduced by Senator Cantwell (D-WA) on July 11, 2011.
• Blackfoot River Land Settlement Act, S 1065. On June 28, 2012, the Senate Committee on Indian Affairs amended and reported legislation (S 1065, S. Rept. 112-199) that would have ratified a negotiated agreement among the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation, non-Indian litigants, and the State of Idaho to resolve land ownership disputes that arose from the realignment of the Blackfoot River by the Corps of Engineers in the mid-1960’s. The bill would have: conveyed certain lands in trust for the Tribe and allottees; conveyed non-Reservation lands to the Black River Flood Control District No. 7 which would have been re-conveyed to the non-Indian landowners; and authorized $700,000 to fund a tribal trust fund account, an allottee trust fund account and an account controlled by the Black River Flood Control District No. 7 for payments to non-Indian landowners and administrative costs.
Senator Crapo (R-ID) sponsored the bill, as he did in the previous Congress.
• Montana Mineral Conveyance Act, HR 1158/S 2110. On July 20, 2011, the House Natural Resources Committee reported an amended Montana Mineral Conveyance Act (HR 1158, H. Rept. 112-299). The bill, introduced by Representative Rehberg (R-MT), sought to correct a long-standing oversight by the federal government to secure on behalf of the Northern Cheyenne Tribe the subsurface mineral rights to several tracts located within the Tribe’s reservation. HR 1158 would provide for a land exchange whereby the Tribe would receive the subsurface mineral rights to the lands currently owned by a private company (Great Northern Properties (GNP)); the GNP would receive subsurface ownership rights to eight sections of federal coal tracts; and the Tribe would waive its legal claims related to the federal government’s failure to secure the subsurface mineral rights on the lands within its reservation. In addition, the Tribe and GNP would have to develop a revenue sharing formula for the proceeds derived from the coal tracts.
Senator Baucus (D-MT) introduced a similar bill in February 2012, entitled the Northern Cheyenne Land Consolidation Act (S 2110, updated from S 647 introduced in March 2011). Unlike HR 1158, the Senate version included provisions related to the Signal Peak Energy lease for Bull Mountain, one of the coal tracts proposed for transfer, and prohibits strip mining of coal at Bull Mountain.
• Cherokee Nation Maintenance of W.D. Mayo Lock and Dam, HR 1421. On July 20, 2011, the House Natural Resources Committee approved legislation (HR 1421, H. Rept. 112-221) that would have amended the Water Resources Development Act to allow the Cherokee Nation of Oklahoma to build one or more hydroelectric power facilities at the W.D. Mayo Lock and Dam located on the Arkansas River in Oklahoma, and to market the electricity generated from the facility/ies. The Secretary of the Army would have had to approve the design and construction plans, and would have been authorized to provide technical and construction management assistance.
Representative Boren (D-OK) introduced HR 1421 on April 7, 2011.
• Southeast Alaska Native Land Entitlement Finalization and Jobs Protection Act, HR 1408/S 730. On July 13, 2011, the House Natural Resources Committee marked up HR 1408, legislation to allow Sealaska to select its remaining land entitlement under the Alaska Native Claims Settlement Act (H. Rpt. 112-280). The lands would be outside the southeast Alaska withdrawal areas as delineated in the Alaska Native Claims Settlement Act. Lands selected could not be part of the National Park system, but could, within limitations, lie within the Tongass National Forest, have traditional, recreational and renewable energy use, be of traditional and customary trade routes, and have sacred or historic significance.
Senator Murkowski (R-AK) introduced legislation on this topic, also entitled the Southeast Alaska Native Land Entitlement Finalization and Jobs Protection Act, S 730, which was referred to the Committee on Natural Resources. A Senate hearing was held May 25, 2011. The bill differs in a number of ways from HR 1408. See Senator Murkowski’s introductory statement in the Congressional Record of April 5, 2011, which explains how this legislation differs from earlier bills on this matter.
• Shingle Springs Band of Miwok Indians Land Conveyance, HR 6532. On September 21, 2012, Representative McClintock (R-CA) introduced HR 6532, legislation that would direct the Secretary of Interior, at the request of the Shingle Springs Band, to convey 40.8 acres of Bureau of Land Management land to the Band. The Band would pay fair market value for the land.
• Arctic Research, Monitoring, and Observing Act, S 3613. On September 21, 2012, Senators Begich (D-AK) and Murkowski (R-AK) introduced legislation (S 3613) which would amend the Arctic Research and Policy Act to require the Arctic Research Commission to provide grants to entities, including tribal governments, related to the Arctic research program plan. The Commission would be required to adopt new conflict of interest provisions affecting awarding of funds. It would increase the amount of funds that may be used to administer grants via the Commerce Department for research in the North Pacific Ocean, Bering Sea, and Arctic Ocean. It would also make changes to the distribution of the Environmental Improvement and Restoration Fund. S 3613 was referred to the Commerce, Science, and Transportation Committee.
• Denali Commission Reauthorization Act, S 3590/HR 6478. On September 20, 2012, Senator Begich (R-AK) and Representative Young (R-AK) introduced, respectively, S 3590 and HR 6478, legislation that would reauthorize and amend the Denali Commission Act.
The legislation would change the composition of the Commission to consist of five persons appointed by the Secretary of Commerce, one each to represent the views and perspectives of: Native Corporations; organized labor or vocational training groups; project management and construction in rural Alaska; rural local governments; and rural tribal interests. In addition the Governor of Alaska and the Federal Co-chairperson of the Commission would be appointed to the Commission. The duties of the Commission would be changed as would the match requirement for construction projects under the Act. The match would be up to 50 percent for the cost of the project, although the match could be 20 percent for the cost of a project carried out in a distressed community. S 3590 was referred to the Committee on Environment and Public Works and HR 6478 was referred to the Committee on Transportation and Infrastructure.
• Mni Wiconi Project Amendments of 2012, S 3464. On July 31, 2012, Senator Tim Johnson (D-SD) introduced S 3464, legislation that would amend the Mni Wiconi Project Act of 1998, a rural water supply system serving the Oglala, Rosebud and Lower Brule Sioux Tribes in South Dakota as well as a multi-county area of the West River/Lyman-Jones Rural Water System. The bill would, among other things, increase the funding authorization, extend the sunset date to complete construction, direct the Secretary to develop separate plans to complete the Oglala, Rosebud and Lower Brule water systems, including addressing the need to upgrade existing community systems, and establish a Mni Wiconi emergency assistance fund. Separate plans would be developed to complete the Oglala, Rosebud, and Lower Brule water supply systems.
The bill was referred to the Energy and Natural Resources Subcommittee on Water and Power, which held a hearing on the legislation on September 19, 2012.
• Report on Alaska Rural Justice and Law Enforcement Commission, S3373. On July 22, 2012, Senator Murkowski (R-AK) introduced legislation (S 3373) which would require the Attorney General to file a report regarding the work of the Alaska Rural Justice and Law Enforcement Commission and make recommendations regarding its future funding and the scope of work and composition of the Commission. The Commission was established in 2004 as part of an omnibus appropriations act, but has not received funding since FY 2010, likely because of the ban on earmarks. The bill was referred to the Judiciary Committee.
• Land into Trust for Samish Indian Nation, HR 5992. On June 21, 2012, Representative Larsen (D-WA) introduced legislation (HR 5992) which would have directed the Secretary of Interior to process as on-reservation acquisitions certain property in the Washington state counties of Skagit and San Juan to be held in trust for the Samish Indian Nation. The land could not be used for gaming purposes.
• Whaling Convention Amendments Act, S 3262/HR 5898. On June 5, 2012, the Alaska delegation – Senators Begich and Murkowski and Representative Young – introduced legislation (S 3262 and HR 5898) which would amend the Whaling Convention Act of 1949 to allow subsistence bowhead whaling under limited circumstances. Under the bills, the Secretary of Commerce could allow aboriginal subsistence whaling if it is for subsistence purposes, does not include the harming or killing of calves, and is not done in a wasteful manner. The Secretary of Commerce could establish limits for Alaska Native subsistence hunting of bowhead whales in years when the International Whaling Commission does not establish catch limits and when scientific evidence shows that aboriginal subsistence needs are sustainable. Within three years of enactment, the Secretary would issue regulations for the aboriginal subsistence whaling authorized under the Act.
S 3262 was referred to the Commerce, Science and Transportation Committee and HR 5898 was referred to the Foreign Affairs Committee.
• Gros Ventre and Assiniboine Tribes of the Fort Belknap Indian Community Water Rights Settlement Act, S 3209. On May 21, 2012, Senator Tester (D-MT) introduced S 3209, legislation designed to facilitate negotiations on as yet unresolved issues with the Fort Belknap Water Rights Compact, and leading to authorization by Congress of a compact. The bill lays out a number of requirements in order for the compact to be approved.
• FWDA Land Conveyance to Zuni Pueblo and Navajo Nation, HR 4187. On March 8, 2012, Representative Pearce (R-NM) introduced legislation (HR 4187) which would legislatively settle distribution of remediated Fort Wingate Depot Activity (FWDA) lands between the Zuni Pueblo and the Navajo Nation. The tribes have negotiated over the “fair distribution” of the lands for over 15 years. Under HR 4187, nearly 5,000 acres would go to the Zuni Pueblo and 907 acres to the Navajo Nation; any future remediated lands would be split 50-50 between the tribes. The bill would reserve to the federal government easements to access the Fort Wingate Launch Complex as well as for administrative and environmental remediation purposes.
The House Subcommittee on Indian and Alaska Native Affairs held an oversight hearing on August 2, 2012, regarding “Indian lands: exploring resolutions to disputes concerning Indian tribes, state and local governments, and private landowners over land use and development,” which included discussion of the Ft. Wingate matter. Representatives of both tribes testified and were not fully supportive of the measure.
• Navajo-Hopi Little Colorado River Water Rights Settlement Act, S 2109/ HR 4067. On February 14, 2012, Senators Kyl (R-AZ) and McCain R-AZ) introduced the Navajo-Hopi Little Colorado River Water Rights Settlement Act (S 2109), legislation intended to resolve litigation that has been ongoing for over 30 years. Representative Quayle (R-AZ) introduced the House version (HR 4067).
The bills would approve the water rights claims of the Navajo and Hopi Tribes, and their allottees, to water from the Little Colorado River and related groundwater in exchange for three groundwater delivery projects that would provide drinking water to specified Navajo and Hopi communities. The Tribes would be required to waive further claims in the Little Colorado River basin. The bill would, among other things, limit the water rights of lands taken into trust for the Navajo Nation or Hopi Tribe after enactment of S 2109 to those provided under the Agreement and the Navajo-Hopi Land Dispute Settlement Act of 1996; release the federal government from any financial obligation related to the operation, maintenance, and replacement costs of the groundwater delivery projects after title to those projects is transferred and stipulated amounts are deposited in trust accounts; and provide that the Secretary would retain certain water for use in future settlements of the claims of the Navajo Nation and Hopi Tribe to Lower Colorado River water.
The Navajo and Hopi Tribes were not fully supportive of the settlement legislation. Objections have also been raised by environmental and other groups.
• Alaska Native Veterans Land Allotment Equity Act, HR 3604. On December 7, 2011, Representative Young (R-AK), introduced HR 3604, legislation to amend the Alaska Native Claims Settlement Act with respect to the open season during which certain Alaska Native Vietnam veterans are eligible to file for allotments for two parcels of federal land totaling 160 acres each. The bill would have amended the use and occupancy requirements and also increase the choices of land available for selection. Representative Young has introduced this same bill in previous Congresses.
• Transfer of Authority and Resources to the Utah Dineh Corporation, S 1327. On July 5, 2011, Senator Hatch (R-UT) introduced legislation (S 1327) which would have designated the Utah Dineh Corporation as the new trustee of the Utah Navajo Trust Fund. The bill was the subject of a Senate Committee on Indian Affairs hearing on October 20, 2011.
• United States Ambassador at Large for Arctic Affairs Act, S 1229. On June 16, 2011, Senator Begich (D-AK) introduced S 1229, legislation which would establish within the Department of State an Ambassador at Large for Arctic Affairs. Among the Ambassador’s duties would be to advise the President and the Secretary of State regarding policies relating to Arctic affairs. The bill was referred to the Committee on Foreign Relations and is identical to S 1563 introduced by Senator Begich in the 111th Congress.
• Cocopah Lands Act, HR 1991. On May 25, 20011, Representative Grijalva (D-AZ) introduced the Cocopah Lands Act (HR 1991). The bill would have required the Secretary of Interior to take land previously purchased by the Tribe into trust for the Tribe. The land would be considered part of the Tribe’s original reservation but could not be used for gaming purposes. HR 1991 would require that the lands for which the titles are to be taken into trust must have no adverse legal claims, including liens, mortgages, or owed taxes. In addition, as requested by the Department of Interior, the lands at the time of transfer must have “no recognized environmental conditions or contamination related concerns.”
• Huna Tlingit Traditional Gull Egg Use Act, S 1063/HR 3037. On May 25, 2011, Senators Murkowski (R-AK) and Begich (D-AK) introduced the legislation (S 1063) which would allow the Hoonah Indian Association to resume its subsistence activity of collecting glaucouos-winged gull eggs in Glacier Bay National Park. The bill would limit the activity to two times a year at five locations. The National Park Service has determined that this level of activity will not harm the gull population but congressional approval is also needed. S 1063 was referred to the Committee on Energy and Natural Resources. Representative Young (D-AK) introduced companion legislation, HR 3037, on September 22, 2011.
• Siletz Reservation Additions, S 908/HR 6141. On May 5, 2011, Senator Wyden (D-OR) introduced legislation (S 908) which would have amended the Siletz Tribe Indian Restoration Act to authorize the Secretary of the Interior to take certain lands into to trust and made part of the Tribe’s reservation as though such lands were “on-reservation” acquisitions. In order for such lands to be considered under the on-reservation process–rather than the lengthier off-reservation process–each of the local counties where the properties are located would have to provide written approval for use of the on-reservation consideration and evaluation process. Land taken into trust under this bill could not be used for gaming purposes. The Senate Committee on Indian Affairs hearing on S 908 was held February 2, 2012.
Representative Schrader (D-OR) introduced a similar bill (HR 6141) on July 18, 2012, but it did not include the provisions requiring submittal of written approval by the counties. The House Subcommittee on American Indian and Alaska Native Affairs held a hearing on HR 6141 on July 24, 2012.
• Elko Motocross and Tribal Conveyance Act, S 617/HR 3815. On March 17, 2011, Senator Reid (D-NV) introduced legislation (S 617) which would have taken into trust status 373 acres of Bureau of Land Management lands for the benefit of the Te-Moak Tribe of Western Shoshone Indians of Nevada. Authorized uses for the land did not include class II or class III gaming. The bill was the subject of a hearing on May 18, 2011, by the Senate Subcommittee on Public Lands and Forests.
Representative Amodei (R-NV) introduced an identical measure (HR 3815) on January 24, 2012.
• Blackfeet Water Rights Settlement Act, S 399/HR 3301. On February 17, 2011, Senator Baucus (D-MT) introduced legislation (S 399) which would have ratified and implemented a water rights compact among the Blackfeet Tribe, the State of Montana and United States. It would also ratify and implement the Birch Creek water use agreement between the Tribe and the State. The bill describes the Tribe’s water rights and would have authorized funding for the Blackfeet Irrigation Project, the Blackfeet Land and Water Development Fund, and established the Birch Creek Mitigation Fund. The State would be required to provide no less than $20 million toward the settlement.
On October 20, 2011, the Senate Committee on Indian Affairs held a hearing on S 399. Representative Rehberg (R-MT) introduced a companion measure (HR 3301) on November 1, 2011.
• Grand Ronde Reservation Act Amendments, HR 726/S 356. On February 15, 2011, Representative Schrader (D-OR) and Senator Merkley (D-OR) introduced companion legislation (HR 726, S 356) which would have amended the Grand Ronde Reservation Act to authorize the Secretary of the Interior to take certain lands into trust on behalf of the Grand Ronde Community of Oregon. The measure stated that such property (located within the boundaries of the Tribe’s original 1857 reservation) taken into trust is to be treated as “on-reservation” trust acquisition, and is to be part of the Tribe’s reservation.
The House Subcommittee on American Indian and Alaska Native Affairs held a hearing on HR 726 on July 24, 2012. The Senate Committee on Indian Affairs hearing on S 356 was held February 2, 2012.
• Fountainhead Property Land Transfer Act, HR 475. On January 26, 2011, Representative Boren (D-OK) introduced the Fountainhead Property Land Transfer Act (HR 475), legislation which would have authorized the Secretary of the Interior to take into trust 18 acres of federal land in McIntosh County, Oklahoma, for the Muscogee (Creek) Nation. The bill provided that the Tribe would pay to the Secretary the fair market value of the property and pay for the land survey and all other expenses associated with the transfer of property. The bill would have reserved to the Secretary terms and conditions necessary to protect federal interests, and prohibited the Tribe from conducting gaming on these lands. The bill was referred to the House Transportation and Infrastructure Committee and the Budget Committee.
• Claims Settlement for the Pottawatomi Nation in Canada, S 60/HR 2928. On January 25, 2011, Senator Inouye (D-HI) introduced legislation (S 60) to fully settle the claims of the Pottawatomi Nation in Canada for damages caused by the United States. The settlement would be a one-time payment of $1.83 million. The bill was referred to the Senate Judiciary Committee.
Representative Kildee (D-MI) introduced the House version (HR 2928) in September 2011. This legislation has been introduced in previous sessions of Congress.
• Salmon Lake Land Selection Resolution Act, HR 296. On January 12, 2011, Representative Don Young (R-AK) introduced legislation (HR 296) which would have ratified an agreement among the Secretary of the Interior, the State of Alaska and the Bering Straits Native Corporation. The agreement reached in 2007 would resolve conflicting land selections between the State and the Corporation in the area around Salmon Lake near Nome.
Similar legislation was passed by the House in the 111th Congress.
HOUSE OR SENATE CONSIDERATION
• Native American Heritage Month, S. Res. 561. On September 22, 2012, the Senate passed a resolution (S. Res. 561) to recognize November 2012 as National Native American Heritage Month and the Friday after Thanksgiving as Native American Heritage Day. (PL 111-33 permanently established the Friday after Thanksgiving as “Native American Heritage Day.”) The resolution was introduced by Senator Akaka along with a number of co-sponsors.
• Federal Emergency Management Agency Reauthorization Act, HR 2903/HR 1953/ S 2283. On September 19, 2012, the House of Representatives passed HR 2903 under suspension of the rules. HR 2903 contained, among other things, a modified version of Representative Rahall’s (D-WV) tribal-specific bill (HR 1953) which would have amended the Stafford Act to empower tribes to directly petition the President for a declaration of an emergency or major disaster rather than continuing to route such requests first through a state governor. Prior to its inclusion in HR 2903, HR 1953 had included a provision more expressly providing tribes with waivers for much of the cost sharing associated with the provision of federal emergency and major disaster assistance. However, during the Transportation and Infrastructure Committee markup, this section was removed and replaced with language that would have made tribes eligible in the same manner as are state and local governments for waivers. The Committee also added language directing those drafting the implementing regulations to “consider the unique conditions that affect the general welfare of Indian tribal governments.”
Representative Rahall introduced HR 1953 on May 24, 2011. On March 29, 2012, Senator Tester (D-MT) introduced companion legislation (S 2283) which was referred to the Committee on Homeland Security and Governmental Affairs. The text of S 2283 reflected the changes made by the the House Transportation and Infrastructure Committee.
For further information, see our General Memoranda 12-114 (September 21, 2012) and 12-038 (March 9, 2012).
• Indian Trust Reform Act, HR 6617/S 1065. On November 29, 2012, Representative Simpson (R-ID) introduced HR 6617, the Indian Trust Reform Act. The bill would reform Indian trust asset management by (1) creating a demonstration project wherein tribes could voluntarily assume their own trust asset management, (2) restructuring the Bureau of Indian Affairs by eliminating the Office of the Special Trustee, and (3) creating a cabinet-level post of Undersecretary for Indian Affairs.
Senator Crapo (R-ID) introduced a companion bill (S 3679) on December 13, 2012.
• Tuscarora National Gold Medal Act, HR 6516. On September 21, 2012, Representatives Hochul (D-NY) and Higgins (D-NY), introduced HR 6516, legislation to award a Congressional Gold Medal to the members of the Tuscarora Nation who, during the war of 1812, fought the British in defense of the residents of Lewiston, New York, thus saving many lives of people in that community. The bill was referred to the Committee on Financial Services.
• Elouise Pepion Cobell Gold Medal, S 1514. On September 6, 2011, Senator Tester (D-MT), along with Senators Baucus (D-MT), Akaka (D-HI) and Inouye (D-HI) introduced S 1514, legislation to authorize the President to present to Elouise Cobell, on behalf of Congress, a Gold Medal in recognition of her role in seeking justice for Indian people in the federal government’s mishandling of individual Indian trust funds. The bill was referred to the Committee on Banking, Housing and Urban Development. Elouise Cobell died on October 16, 2011.
• Indian Arts and Crafts Act Amendments. On August 2, 2012, Representative Rahall (D-WV) introduced HR 6274, legislation clarifying the definition of Indian and Indian organization for the purpose of a civil action brought under the Act against a person for the misrepresentation of an Indian-produced good. The bill would broaden the definition of “Indian” and add a definition of “Indian organization.” The bill was referred to the Natural Resources and the Judiciary Committees.
• Department of the Interior Tribal Self-Governance Act, HR 2444. On July 7, 2011, HR 2444, the Department of the Interior Tribal Self-Governance Act of 2011 was introduced by Representative Boren (D-OK) with bi-partisan support and 11 co-sponsors. The Subcommittee on Indian and Alaska Native Affairs held a hearing on the bill in September 2011.
The bill (Title IV Amendments) would strengthen Tribal Self-Governance in the Department of the Interior and bring it into line with Title V of PL 93-638, as amended, which was adopted in 2000 and permanently authorized Self-Governance for the Indian Health Service (IHS). Currently, many Tribes are forced to operate under two separate administrative requirements, one for Bureau of Indian Affairs (BIA) and one for IHS. The Title IV Amendments include many of the Title V provisions that would streamline and make the administrative responsibilities for Self-Governance tribes more consistent which would create substantial administrative efficiencies.
• RESPECT Act, HR 2380. On July 6, 2011, Representative Grijalva (D-AZ) introduced the Requirements, Expectations, and Standard Procedures for Executive Consultation with Tribes (RESPECT) Act, HR 2380. The bill would have established requirements and guidelines with which federal agencies must comply when engaging in tribal consultation on matters that would have “substantial direct impacts on the lands or interests of one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” Other provisions of the bill addressed the protection of sensitive tribal information, agency recognition of tribal sovereignty, codification of tribal waiver application process, and tribal judicial recourse for agency failure to fulfill consultation obligations.
• Overlapping Programs’ Elimination/Reduction, S 945/HR 2782/HR 6729. On May 11, 2011, Senator Coburn (R-OK) introduced legislation (S 945) which would direct the Office of Management and Budget (OMB) to work with federal agencies to find ways to administratively eliminate, consolidate, or streamline federal programs which are listed in the 2011 Government Accountability Office (GAO) report as possibly being overlapping or duplicative. In addition, OMB is to report to Congress on legislative changes needed to de-fund or consolidate some programs and determine the cost savings. Following that, $5 billion would be rescinded from the appropriate accounts. Companion legislation (HR 2782) was introduced by Representative McCotter (R-MI) on May 5, 2011.
On January 1, 2013, Representative Culberson (R-TX) introduced similar legislation, HR 6729, except that it referenced a 2012 GAO report on duplicative programs as well as the 2011 report. Under that bill $10 billion would be rescinded.
The reports referenced in the bills are GAO 11-318SP (March 2011) and its supplement which is more specific in listing programs (GAO 11-474R) and GAO 12-342SP of February 2012. A sampling of the programs listed as possibly duplicative or overlapping include Indian Community Development Block Grant; Indian Reservations Roads and Bridges; Food Distribution Program on Indian Reservations; Head Start; Temporary Assistance for Needy Families; Administration for Native Americans; Tribal Work Grants; urban Indian health, and the BIA’s education; welfare assistance; and housing improvement programs.
The GAO is careful to say that they are not making recommendations on the fate of these programs and states there may good reasons for programs to have similar tasks:
As noted in our March 1 report, the presence of fragmentation and overlap can suggest the need to look more closely at the potential for unnecessary duplication. However, determining whether and to what extent programs are actually duplicative requires programmatic information that is often not readily available. In addition, while we have reported on examples where duplication, overlap, and fragmentation can hinder program performance and cause inefficiencies, we recognize that there could be instances where some degree of program duplication, overlap, or fragmentation may be warranted due to the nature or magnitude of the federal effort. (GAO 11- 474R, p. 1)
S 945 was referred to the Homeland Security and Government Affairs Committee. HR 2782 and HR 6729 were referred to the Committee on Oversight and Government Reform and the Appropriations Committee.
• National American Indian Veterans, Inc., S 728. On April 5, 2011, Senator Tim Johnson (D-SD) introduced S 728, legislation which would provide for the establishment of and grant a federal charter to National American Indian Veterans, Incorporated. The organization would promote the social welfare of, and advocate for, Indian, Alaska Native and Native Hawaiian veterans and their families. It would engage in outreach to tribes in regions without veterans committees and in training of Tribal Veterans Service Officers. The bill was referred to the Judiciary Committee.
Please let us know if we may provide additional information regarding legislation or other matters reported on in this Memorandum.