• Indian Law Update: Third Quarter Report -- 2007
  • November 29, 2007 | Author: Teresa E. Poust
  • Law Firm: Holland & Knight LLP - Los Angeles Office
  • During a short Third Quarter, Congress continued working to complete the twelve Fiscal Year (“FY”) 2008 appropriations bills, but was forced to pass a Continuing Resolution prior to the end of the 2007 fiscal year, which concluded on September 30th, since none of the FY 2008 appropriations bills had been finalized (see EYE ON CONGRESS: FY 2008 Appropriations and FY 2008 Continuing Resolution respectively). Congress also focused on General David Petraeus’ report on Iraq, released in early September, as well as the reauthorization of the State Children’s Health Insurance Program (“SCHIP”) and the Water Resources Development Act (“WRDA”), which were both vetoed by the President. The House was unable to override the SCHIP veto, but passed a revised bill the week of October 26th while the Senate passed its revised SCHIP bill the following week. The House and Senate were able to override the WRDA veto, which authorizes funding for flood control, navigation and environmental restoration projects by the Army Corps of Engineers, with a two-thirds majority approval that enabled the bill to become law on November 8th (P.L. 110-114). The House also passed a measure to revise and overhaul the Federal Housing Administration’s mortgage lending practices while the Senate passed the FY 2008 Defense Authorization/Iraq War supplemental in early October, which is now awaiting House action.

    With regard to Indian affairs related legislation, several bills with significant impact to Indian Country saw action in the Third Quarter, including the Indian Health Care Improvement Act (“IHCIA”), Native American Housing and Self Determination Act (“NAHASDA”), Head Start Reauthorization and Indian Head Start (see EYE ON CONGRESS: Indian Health Care Improvement Act, Indian Housing, and Head Start Reauthorization and Indian Head Start). The House also passed the Native Hawaiian Government Recognition bill in October.

    The House and Senate are expected to take a two-week Thanksgiving recess beginning on Monday, November 19th and returning the week of December 3rd. The House will likely hold votes during the first and second week of December, though it is not expected to consider any new legislation after Thanksgiving, and instead will only focus on conference reports and clearing appropriations bills with the Senate. The Senate is expected to return to session after Thanksgiving for possibly three weeks, ending just prior to the Christmas holidays, with adjournment widely anticipated on or before December 22nd.

     

    EYE ON CONGRESS

     

    FY 2008 Appropriations. The House completed all twelve of its FY 2008 appropriations bills prior to the Third Quarter, with the Senate passing six of its bills since the beginning of September, for a total of seven FY 2008 appropriations bills completed thus far. Senate Majority Leader Reid has not indicated if or when the Senate will consider its remaining five FY 2008 appropriations bills: Energy and Water; Interior; Financial Services; Legislative Branch; and Agriculture.

    On October 26th, House and Senate leadership decided to proceed with a “mini-bus” appropriations package including the Labor-Health and Human Services (“Labor-HHS”); Military Construction/Veterans’ Affairs; and Department of Defense appropriations bills. Formal conference on these three bills began late in the week of October 29th, with votes scheduled in the House and Senate on the final “mini-bus” package the week of November 5th in order to send to the President by Veteran’s Day. However, soon after formal conference negotiations began, House Leadership pulled the FY 2008 Defense appropriations bill from the package over concerns expressed by Republicans on the overall cost of the “mini-bus” and a Presidential veto threat. On November 8th, the House and Senate cleared two FY 2008 appropriations bills for the President’s consideration - Labor-Health and Human Services (“Labor-HHS”) and Department of Defense. House and Senate conferees approved the conference report for the FY 2008 Labor-HHS and Military Construction-Veterans’ Affairs appropriations bills, and the House immediately passed the conference report. However, the Senate removed the FY 2008 Military Construction-Veterans’ Affairs appropriations bill from the package and approved just the FY 2008 Labor-HHS appropriations bill. The President vetoed the FY 2008 Labor-HHS appropriations bill on November 13th, which the House failed to override on November 15th.

    The FY 2008 Military Construction appropriations bill is now on-hold, and no further indication has been given on when the bill will be cleared for the President.

    House and Senate conferees also approved, and Congress cleared for the President, the FY 2008 Department of Defense appropriations bill, in which conferees included a new Continuing Resolution (see FY 2008 Continuing Resolution below). The President signed the FY 2008 Department of Defense appropriations bill on November 13th.

    FY 2008 Appropriations Bills Passed the House Passed the Senate Conference Public Law
    Homeland Security June 15 July 26 *Awaiting  
    Military Construction/Veterans Affairs June 15 September 6 *Awaiting  
    Energy & Water Development July 17      
    Interior June 27      
    Financial Services June 28      
    State/Foreign Operations June 22 September 6 *Awaiting  
    Legislative Branch June 22      
    Labor-HHS July 19 October 23 Cleared for the President on Nov. 8  
    CJS July 26 October 16 *Awaiting  
    Transportation, Treasury, House and Urban Development ("T-THUD") July 24 September 12 House & Senate approved conference report on Nov. 8  
    Agriculture August 2      
    Defense August 5 October 3 Cleared for the President on Nov. 8 P.L. 100-116

    *Awaiting = Senate conferees named; awaiting House appointment of conferees.

    FY 2008 Continuing Resolution. The initial Continuing Resolution (“CR”) that funded the federal government at FY 2007 funding levels expired on November 16, 2007. However, in the FY 2008 Department of Defense appropriations bill, House and Senate conferees included a new CR to provide temporary funding through December 14th to provide additional time for Congress to wrap up the FY 2008 appropriations bills. Although the new CR does not include funding for the Iraq war, it does provide additional funding for veterans’ programs since Congress has not yet cleared the FY 2008 Military Construction-Veterans’ Affairs appropriations bill.

    H.R. 1328/S. 1200 - Indian Health Care Improvement Act (“IHCIA”) Reauthorization Legislation. Both the House and Senate continued considering IHCIA reauthorization in the Third Quarter. H.R. 1328 (Pallone, D-NJ), was approved by the House Natural Resources Committee (“HNRC”) in the First Quarter, and must also be approved by the House Energy and Commerce and Ways and Means Committees. The House Energy and Commerce Subcommittee on Health postponed its markup of the bill, originally scheduled for October 30th, and conducted the markup on November 7th (see COMMITTEE ACTION: Committee Markups below). There is indication that the House Energy and Commerce Full Committee might consider H.R. 1328 in early December. The House Ways and Means Committee is expected to take quick action on the H.R. 1328 following mark up by the full Energy and Commerce Committee.

    The IHCIA Senate bill, S. 1200 (Dorgan, D-ND), has been approved by the Senate Committee on Indian Affairs (“SCIA”), and the Senate Finance Committee held a markup of the bill on September 12th. The bill is now awaiting action on the Senate floor.

    H.R. 1429/S. 556 - Indian Head Start Provisions. In early September, House and Senate staff began extensive conference negotiations on the Head Start reauthorization, H.R. 1429 (Kildee, D-MI) and S. 556 (Kennedy, D-MA), both passed earlier this year. H.R. 1429 would improve program quality, expand access, and implement other changes, including an immediate 3.5 percent set aside for Indian Head Start, subject to a study and Secretarial determination on the level of need. H.R. 1429 would also require government-to-government consultation with Indian tribal governments to develop a correction plan before an Indian Head Start program can be found deficient and forced to re-compete. The Senate version, S. 556, provides a 4 percent set aside for Indian Head Start programs and would prevent other Head Start programs from expanding until the Indian and Migrant programs reach their respective set-aside amounts established in the bill.

    On November 8th, House and Senate conferees met to approve the conference report on the House and Senate Head Start Act Reauthorization bills. The conferees agreed to a $50 million per year expansion of the Indian Head Start program with the increase to be phased in over several years, a 27 percent increase in the current size of the program. In addition, the conferees’ agreement provides that Indian Head Start will receive funding adjustments for inflation and will receive 5 percent of the overall Head Start funding increase as “special expansion dollars.” These special expansion dollars would amount to approximately $7.5 million, which will become part of the base funding for Indian Head Start and remain in tact until the next Head Start reauthorization. The House and Senate passed the conference report the week of November 12th. The Administration has not issued a veto threat on the bill.

    H.R. 2786/S.2062 – Native American Housing Assistance and Self Determination Act (“NAHASDA”) Reauthorization Legislation. On September 6th, the House passed H.R. 2786 (Kildee, D-MI) with the following amendments:

    • Amendment 2 (King, R-IA), to prohibit the use of funds authorized under the bill to employ undocumented aliens. The King amendment initially failed on voice vote, but was later agreed to by recorded vote.

    • Amendment 3 (Pearce, R-NM), to establish a demonstration program for guaranteed loans to finance tribal community and economic development activities. The Pearce amendment was agreed to by voice vote. Rep. Pearce initially tried to introduce this amendment during the June 26 markup; however, Chairman Barney Frank (D-MA) advised Rep. Pearce to offer the amendment as a separate bill, which Rep. Pearce later introduced on July 26 as H.R. 3002.

    • Amendment 6 (Watt, D-NC), to prohibit the use of funds for the benefit of the Cherokee Nation of Oklahoma (“Nation”) until the Nation fully recognizes all Cherokee Freedman and their descendants as citizens of the Nation. Rep. Dan Boren (D-OK) offered an amendment to the Watt amendment incorporating Congressional findings with respect to the status of the Cherokee Freedman. The Boren amendment was agreed to by voice vote, and then the Watt amendment was agreed to by voice vote.

    Two controversial amendments failed on recorded vote:

    • Amendment 5 (Price, R-GA), to offset spending authorized by the bill. The Price amendment also failed on voice vote.

    Amendment 7 (Westmoreland, R-GA), to strike the section of the bill providing housing assistance for Native Hawaiians. The Westmoreland amendment also failed on voice vote.

    H.R. 2786 was received in the Senate and referred to SCIA on September 10th. On September 18th, SCIA Chairman Byron Dorgan introduced the Senate NAHASDA companion bill, S. 2062. SCIA held a markup and ordered the bill reported favorably without amendment on September 27th. Senator John Barrasso (R-WY) asked his vote on S. 2062 to be recorded as a “no” vote citing that tribal members in his state are concerned that the bill will adversely impact their receipt of other federal housing assistance funding. S. 2062 must also be considered by the Senate Committee on Banking, Housing, and Urban Affairs, which has not yet scheduled a hearing or markup on the bill. In addition, there are other concerns with S. 2062 including the potential that the controversial Cherokee Freedman issue could be raised in a similar manner that occurred with the House bill. Another concern involves Section 301, the Allocation Formula, also referred to as the “Fort Peck fix,” which has been the subject of negotiated rulemaking and federal litigation. Finally, the House bill specifically prohibits the use of funds for infrastructure while the Senate bill permits the use of such funds under Subtitle B, Section 207.

    H.R. 3585/S.1852 - Native American Heritage Day Legislation. On September 19th, Rep. Joe Baca (D-CA) introduced H.R. 3585, to honor the achievements and contributions of Native Americans to the United States, which was referred to the House Committee on Education and Labor. Senator Daniel Inouye (D-HI) introduced the Senate companion bill, S. 1852, earlier this summer. Both bills are awaiting committee action.

    H.R. 2419/S. 2302 - Farm Bill Reauthorization Legislation. The Farm Bill of 2002, which includes programs and services for Indian tribes, is up for reauthorization this year. The House and Senate bills will extend the programs through FY 2012. The House passed H.R. 2419 introduced by Rep. Collin Peterson (D-MN) in the Second Quarter. H.R. 2419 contains provisions for improving how the U.S. Department of Agriculture treats Indian farmers by strengthening the Food Distribution Program on Indian Reservations. The Senate bill, S. 2303, introduced by Senator Tom Harkin (D-IA), was marked up by the Agriculture Committee on October 25th. S. 2302 also includes a provision which expanded tribal access for The Fresh Fruit and Vegetable Program, a pilot project started in 2002 which gives children more access to fresh fruits and vegetables. The Senate proceeded with floor action on the bill the week of November 5th; however, further consideration of the bill is currently delayed over negotiations on the number of amendments that will be offered.

    8(a) Contracting. On October 17th, House Small Business Committee Chairwoman Nydia Velazquez (D-NY) introduced H.R. 3867, the Small Business Contracting Program Improvement Act, to update and expand the procurement programs of the Small Business Administration (“SBA”). H.R. 3867 would modernize the 8(a) contracting program, expand opportunities for women entrepreneurs, and modify the service-disabled veteran procurement program. In addition, H.R. 3867 contains provisions updating the 8(a) program to raise the net worth for participation from the current amount of $250,000 to $750,000, and to ensure that federal agencies are subject to small business goals corresponding to each of the SBA’s various contracting programs. The Committee marked up the bill on October 18th, the full House passed it on October 30th, and was received in the Senate.

    On October 17th, Senator Tim Johnson (D-SD) introduced S. 2176, to promote the development of Native American small business concerns, which was referred to the Senate Small Business and Entrepreneurship Committee and is awaiting Committee action.

    Pension Protection Act. On September 19th, H.R. 3361, to make technical corrections related to the Pension Protection Act of 2006, was referred to the House Ways and Means Subcommittee on Health, Employment, Labor, and Pensions and is currently awaiting Subcommittee action. The bill, introduced earlier this year by Rep. Charles Rangel (D-NY), does not contain any tribal specific provisions, but continues to be monitored for potential impact to Indian tribes.

     

    FLOOR ACTION

     

    NAHASDA Reauthorization. On September 6th, the House passed H.R. 2786 (Kildee, D-MI), reauthorizing NAHASDA, by a vote of 333 yeas to 75 noes. The bill, which extends NAHASDA to provide housing assistance for Native Americans for an additional five (5) years, was sent to the Senate and referred to the SCIA on September 10th.

    Infrastructure Improvements at Tribal Colleges and Universities. On September 12th, the Senate passed H.R. 3074, the FY 2008 T-THUD appropriations bill. During debate, Senator Patty Murray (D-WA) introduced an amendment (#2819) on behalf of Senator Dorgan (D-ND), to increase support for infrastructure improvements at tribal colleges and universities, with an offset. The amendment was agreed to.

    Federal Assistance to Indian Tribes to Prosecute Hate Crimes. On September 27th, the Senate agreed by voice vote to an amendment (#3035) to H.R. 1585, the FY 2008 Defense Authorization bill, introduced by Senator Ted Kennedy (D-MA), to provide federal assistance to state, local jurisdictions, and Indian tribes to prosecute hate crimes and for other purposes. The House and Senate began informal conference negotiations on H.R. 1585, with the amendment, before Thanksgiving.

    Senate FY 2008 CJS Appropriations Bill. On October 4th, the Senate began consideration of the FY 2008 CJS appropriations bill and passed the bill on October 16th. Several amendments involving Indian Country were raised during debate, including:

    Amendment No. 3240 (Dorgan, D-ND), to increase funding for components of the Law Enforcement Initiative in Indian Country within the Department of Justice. Senators Jeff Bingaman (D-NM), Jon Tester (D-MT), Max Baucus (D-MT), Maria Cantwell (D-WA), and John Thune (R-SD) all cosponsored the amendment. Senator Dorgan later withdrew the amendment after Senator Barbara Mikulski (D-MD) agreed that her office would work on additional funding when the bill goes to conference;

    Amendment No. 3208 (Bingaman, D-NM), the Native American Methamphetamine Enforcement and Treatment Act of 2007, to amend the Omnibus Crime Control and Safe Streets Act of 1968 to clarify that Indian tribes are eligible to receive grants for confronting the use of methamphetamine. Amendment No. 3208 was further amended to address Senator John McCain’s (R-AZ) concerns regarding clarification that the grant funding may not be used by a tribe that does not have criminal jurisdiction. The amendment was agreed to by Unanimous Consent; and

    Amendment No. 3317 (Thune, R-SD), to provide, in a fiscally responsible manner, additional funding for United States attorneys to prosecute violent crimes in Indian country. The amendment failed.

    Native Hawaiian Government Reorganization Act of 2007. On October 24th, the House passed H.R. 505, introduced by Rep. Neil Abercrombie (D-HI), to express the policy of the United States regarding the United States relationship with Native Hawaiians and to provide a process for the recognition by the United States of the Native Hawaiian governing entity. The bill passed without amendment by a vote of 261 yeas to 153 nays. Rep. Jeff Flake’s (R-AZ) motion to recommit the bill to the HNRC failed. On October 25th, H.R. 505 was received in the Senate and placed on the Senate Legislative Calendar.

    House Resolution Recognizing the Contributions of Native American Veterans. On November 5th, the House passed H.Res.744 (Wilson, R-NM), to recognize the contributions of Native American veterans and calling upon the President to issue a proclamation urging the people of the United States to observe a day in honor of Native American veterans.

    Omnibus Indian Advancement Act Amendment. On November 5th, the Senate passed S. 1347 (Feinstein, D-CA), to amend the Omnibus Indian Advancement Act to modify the date as to which certain tribal land of the Lytton Rancheria of California is deemed to be held in trust and to provide for the conduct of certain activities on the land. On November 6th, the bill was received in the House and referred to the HNRC.

    Tribal Tax Extensions in the Temporary Tax Relief Act of 2007. On November 9th, the House passed H.R. 3996 (Rangel, D-NY), the Temporary Tax Relief Act of 2007, to amend the Internal Revenue Code of 1986 to extend certain expiring provisions. H.R. 3996 primarily provides for a one-year extension of the Alternative Minimum Tax Relief. In addition, the bill extends various expiring tax provisions of interest to Indian tribes and those locating businesses on Indian reservations. First, H.R. 3996 extends the Indian employment credit provision, which provides a one-year business tax credit for employers of qualified employees that work and live on or near an Indian reservation. Second, H.R. 3996 provides a one-year extension of the accelerated depreciation provision for business properties located on an Indian reservation.

     

    COMMITTEE ACTION

     

    Committee Markups

    Medicare, Medicaid and SCHIP within IHCIA. On September 12th, the Senate Finance Committee marked up the Medicare, Medicaid, and SCHIP portion of S. 1200, the IHCIA reauthorization bill. The measure was agreed to without any amendments, and the bill was approved. Any amendments that were not raised in the markup will most likely be offered when the bill is brought to the Senate floor. SCIA previously approved the measure on May 10th.

    Native Hawaiian Homeownership Opportunity Act of 2007. On September 19th, the Senate Banking, Housing, and Urban Affairs Committee marked up and ordered reported favorably, H.R. 835 (Abercrombie, D-HI), without written report. The bill now awaits Senate floor action after being placed on the Senate Legislative calendar on September 26th.

    SCIA Business Meeting. On September 27th, the SCIA held a business meeting to mark up three tribal measures and to consider the nomination of five (5) individuals to serve as members on the Board of Trustees of the Institute of American Indian and Alaska Native Culture and Arts Development. The nominations were agreed to and the following three measures were ordered reported favorably without amendment:

    S. 2062 (Dorgan, D-ND), to reauthorize NAHASDA;

    S. 2087 (Dorgan, D-ND), to amend certain laws relating to Native Americans to make technical corrections, and for other purposes; and

    S.1347 (Feinstein, D-CA) - Omnibus Indian Advancement Act Amendment.

    IHCIA Reauthorization. On November 7th, the House Energy and Commerce Subcommittee on Health approved H.R. 1328 (Pallone, D-NJ), to amend the IHCIA to revise and extend the Act. Subcommittee Chairman Frank Pallone offered a manager’s amendment to address the Administration’s concerns over the bill, specifically how the bill would apply to Native Americans living outside tribal lands. The amendment was adopted by voice vote. Also during Subcommittee consideration of H.R. 1328, House Republicans raised the issue to amend IHCIA to require U.S. citizenship, but it was defeated. It is possible the citizenship issue could be raised in the future.

    Committee Hearings

    Methamphetamine Supply Chain. On September 18th, the Senate Finance Committee held a hearing on breaking the methamphetamine (“meth”) supply chain and meeting challenges at the border. The following witnesses appeared and presented testimony at the hearing: Thomas Siebel (Chairman, The Meth Project); Peter Wolfgram (President, Bungalow Drug Inc.); Gary Kendell (Director, Iowa Governor’s Office of Drug Policy), Joseph Rannazzisi (Deputy Assistant Administrator, Drug Enforcement Administration (“DEA”)); Christy McCampbell (Deputy Assistant Secretary of State, Bureau of International Narcotics and Law Enforcement Affairs, Department of State); and Matthew Allen (Deputy Assistant Director, Office of Investigations, U.S. Immigration and Customs Enforcement (“ICE”)). Although no tribal specific issues were raised, the hearing was monitored for potential tribal concerns or impact on Indian tribes.

    Tribal-Specific Legislation. On September 18th, the HNRC Subcommittee on Water and Power held a hearing on the following two bills that were introduced earlier this year:

    H.R. 2733 (Thompson, D-CA), the “Trinity River Restoration Fund Act of 2007,” to establish the Trinity River Restoration Fund; and

    H.R. 2085 (Fallin, R-OK), the “McGee Creek Project Pipeline and Associated Facilities Conveyance Act,” to authorize the Secretary of the Interior to convey to the McGee Creek Authority certain facilities of the McGee Creek Project, Oklahoma.

    Several witnesses appeared and presented testimony, including: Robert Johnson (Commissioner, Bureau of Reclamation); Clifford Lyle Marshall (Chairman, Hoopa Valley Tribe); Troy Fletcher (Tribal Member and Policy Analyst, Yurok Tribe); Jim Feider (Electric Utility Director, Northern California Power Agency); Thomas Weseloh (North Coast Manager, California Trout); Ara Azhderian (Water Policy Administrator, San Luis & Delta-Mendota Water Authority); and Pete White (Oklahoma City Councilman, Ward 4, and Chairman, The McGee Creek Authority).

    SBA Contracting Programs. On September 19th, the House Small Business Committee held a hearing on the SBA’s Contracting Programs, with particular emphasis on Historically Underutilized Business Zones (“HUBZone”), the 8(a) Business Development Program, and Women’s Procurement Programs. The following witnesses appeared and presented testimony: Jovita Carranza (Deputy Administrator, SBA); Harry Alford (President, National Black Chamber of Commerce); Ronald Chamrin (Assistant Director, American Legion’s Economic Commission); Margot Dorfman (CEO, U.S. Women’s Chamber of Commerce); P.J. Goel (President, Goel Services, Inc., representing the Associated General Contractors); Ron Newlan (Director, HUBZone Contractors National Council); and Trevor Brown (Assistant Professor, John Glenn School of Public Affairs at the Ohio State University).

    Federal Recognition Process of Indian Tribes. On September 19th, the SCIA held a hearing on the process of federal recognition of Indian Tribes. The following witnesses appeared and presented testimony: Lee Fleming (Director, Office of Federal Acknowledgment, U.S. Department of Interior (“DOI”)); Jimmy Goins (Tribal Chairman, Lumbee Tribe of North Carolina); John Sinclair (Tribal President, Little Shell Tribe of Chippewa Indians of Montana); Ann Tucker (Tribal Chairperson, Muscogee Nation of Florida); and Ron Yob (Tribal Chairman, Grand River Bands of Ottawa Indians).

    Diversifying Native Economies. On September 19th, the HNRC held a hearing on diversifying Native economies. The following witnesses appeared and presented testimony: Dr. Robert Middleton (Director, DOI Office of Indian Energy and Economic Development); William H. Largent (Assistant Administrator, Office of Native American Affairs, SBA); Katherine V. Schinasi (Managing Director, Acquisition and Sourcing Management, Government Accountability Office); Tex Hall (Chairman and CEO, Inter-Tribal Economic Alliance (“ITEA”)); Joe Garcia (President, National Congress of American Indians (“NCAI”)); Greg DuMontier (Chairman, Native American Contractors Association (“NACA”)); Julie Kitka (President, Alaska Federation of Natives); Jonathan Taylor (Research Associate, The Harvard Project on American Indian Economic Development, Harvard University; Senior Policy Associate, Native Nations Institute, University of Arizona; President, The Taylor Policy Group, Inc.); Neal McCaleb (Chairman of the Board of Directors, Chickasaw Nation Industries, Inc.); and Sarah Lukin (Director of External Relations, Afognak Native Corporation and Alutiiq, LLC).

    Tribal Water Legislation. On September 25th, the HNRC Subcommittee on Water and Power held a hearing on three bills introduced earlier this year:

    H.R. 123 (Dreier, R-CA), to authorize appropriations for the San Gabriel Basin Restoration Fund;

    H.R. 2498 (Costa, D-CA), to provide for a study regarding development of a comprehensive integrated regional water management plan addressing four general areas of regional water planning in both the San Joaquin River Hydrologic Region and the Tulare Lake Hydrologic Region of California; and

    H.R. 2535 (Nunes, R-CA), “The Tule River Tribe Water Development Act” directing the Secretary of the Interior to conduct a study on the feasibility and suitability of constructing a storage reservoir, outlet works, and a delivery system for the Tule River Indian Tribe of California to provide a water supply for domestic, municipal, industrial, and agricultural purposes.

    Several witnesses appeared and presented testimony, including Alec Garfield (Director, Water Resources Department, Tule River Tribal Council).

    Minority-Owned Business Federal Contracting. On September 26th, the House Oversight and Government Reform Subcommittee on Government Management, Organization, and Procurement held a hearing on “Federal Contracting: Removing Hurdles from Minority-Owned Small Businesses.” The following witnesses appeared and presented testimony: Calvin Jenkins (Deputy Associate Administrator of Office of Government Contracting and Business Development, SBA); Anthony Martoccio (Director of the Defense Department’s Office of Small Business Programs, SBA); William Shear (Director of Financial Markets and Community Investment, Government Accountability Office (“GAO”)); Preston Jay Waite (Deputy Director of the U.S. Census Bureau); Michael Barrera (President and CEO of the United States Hispanic Chamber of Commerce); Damon Kinebrew (Treasurer of the Association of Minority Enterprises of New York); Allegra McCullough (Former SBA Associate Deputy Administrator for Government Contracting and Business Development); and Anthony Robinson (President of the Minority Business Enterprise Legal Defense and Education Fund). Although no tribal specific issues were raised, the hearing was monitored for potential tribal concerns or impact on Indian tribes.

    Violence Against Native Women. On September 27th, the SCIA held an oversight hearing on the prevalence of violence against Indian women. The following witnesses appeared and presented testimony: Alex Arriaga (Director of Government Relations, Amnesty International); Jami Rozell (Educator-survivor citizen, Cherokee Nation); Tammy Young (Co-Director, Alaska Native Women’s Coalition Against Domestic Violence and Sexual Assault); Karen Artichoker (Director, Sacred Circle); and Riyaz Kanji (Constitutional Scholar).

    National Border Security. On September 27th, the Senate Finance Committee held a hearing on, “Border Insecurity, Take Three: Open and Unmonitored,” the third in a series of hearings examining the GAO’s investigations of border security. The following witnesses appeared and presented testimony before the Committee: Greg Kutz (Managing Director for Forensic Audits and Special Investigations, GAO); Ronald Colburn (Deputy Chief of U.S. Customs and Border Patrol); and Kenneth Luongo (Executive Director of the Partnership for Global Security). Although no tribal specific issues were raised, the hearing was monitored for potential tribal concerns or impact on Indian tribes.

    H.R. 2837 - Indian Tribes Federal Recognition. On October 3rd, the HNRC held a hearing on H.R. 2837, introduced by Rep. Eni Faleomavaega (D-AS), the Indian Tribal Federal Recognition Administrative Procedures Act, to provide for administrative procedures to extend Federal recognition to certain Indian groups. The following witnesses appeared and presented testimony before the Committee: Rep. Christopher Shays (R-CT); Carl Artman (Assistant Secretary - Indian Affairs, DOI); Patricia Zell (President, Zell & Cox); Arlinda Locklear (Attorney); Mark Tilden (Native American Rights Fund (“NARF”)); James Keedy (Executive Director, Michigan Indian Legal Services); Derril Jordan (Attorney); Steve Austin (Cultural Anthropologist, Austin Research Associates); Mike Lawson (Expert); and David Cramer (Expert), who was accompanied by Chairman Donny Fry of the Confederated Tribes of Lower Rogue.

    H.R. 1108 - Family Smoking Prevention and Tobacco Control Act. On October 3rd, the House Energy and Commerce Subcommittee on Health held a hearing on H.R. 1108 (Pallone, D-NJ), to protect the public health by providing the Food and Drug Administration (“FDA”) with certain authority to regulate tobacco products. The following witnesses appeared and presented testimony before the Subcommittee: Fred M. Jacobs (Commissioner, New Jersey Department of Health and Senior Services); Richard Bonnie (John S. Battle Professor of Psychiatry and Public Policy, University of Virginia); Risa Lavizzo-Mourey (President, Robert Wood Johnson Foundation); Scott Ballin (Steering Committee Member, Alliance for Health Economic and Agricultural Development); James Winkler (General Secretary, United Methodist Church); Henry Armour (President, National Association of Convenience Stores); Alan Blum (Professor, Center for the Study of Tobacco and Society); Jack Henningfield (Vice President, Research and Health Policy, Pinney Associates); and William Corr (Executive Director, Campaign for Tobacco-Free Kids). The FDA was invited, but did not attend the hearing as a witness. Although no tribal specific issues were raised, the hearing was monitored for potential tribal concerns or impact on Indian tribes.

    Backlog of Trust Land Acquisition Applications. On October 4th, the SCIA held a hearing on land into trust applications, environmental assessments (“EA”) and environmental impact statements (“EIS”), probate, and appraisals and lease approval backlogs at DOI. The following witnesses appeared and presented testimony: Carl Artman (Assistant Secretary - Indian Affairs, DOI); William Rhodes (Governor, Gila River Indian Community); Ron His Horse Is Thunder (Chairman, Standing Rock Sioux Tribe); Robert Chicks (Vice President, NCAI Midwest Region and President of Stockbridge Munsee Band of Mohican Indians), accompanied by John Dossett (NCAI); Frank Bigelow (Supervisor, Madera County Board of Supervisors); and Doug Nash (Director, Indian Estate Planning And Probating, Institute of Indian Estate Planning and Probate).

    Northern Border Security Economic Impact. On October 10th, the Senate Judiciary Committee held a full committee field hearing in Vermont on “Economic and Community Implications of Northern Border Security.” The following witnesses appeared and presented testimony before the Committee: Bill Stenger (President, Jay Peak Resort); Bruce Hyde (Commissioner, Vermont Department of Tourism and Marketing); Dana B. Eidsness (Director of International Trade, Vermont Global Trade Partnership); Timothy Shea (Vice President and Congressional Liaison, Lake Champlain Regional Chamber of Commerce); Curtis Picard (Vice President, Vermont Chamber of Commerce); and Patricia Sears (Executive Director, Newport City Downtown Committee). Although no tribal specific issues were raised, the hearing was monitored for potential tribal concerns or impact on Indian tribes.

    Department of the Interior Tribal Self-Governance Act of 2007. On November 7th, the HNRC held a full committee hearing on H.R. 3994 (Boren, D-OK), to amend the Indian Self-Determination and Education Assistance Act to provide further self-governance by Indian tribes, and for other purposes. The bill, introduced several weeks ago, would conform Title IV of the Act to the reforms enacted by Congress in 2000 in Title V regarding the Indian Health Service (“IHS”). The bill would extend the improvements made in Title V to Title IV, and create greater tribal administrative efficiency by allowing tribes to use the same rules and procedures for both IHS and Interior-funded tribal self-governance programs. The following witnesses appeared and presented testimony before the Committee: Jim Cason (Associate Deputy Secretary, Department of the Interior); Ron Allen (Chairman, Jamestown S’Klallam Tribe); Melanie Benjamin (Chief Executive, Mille Lacs Band of Ojibwe); Jefferson Keel (Lieutenant Governor, Chickasaw Nation); J. Michael Chavarria (Governor, Pueblo of Santa Clara); and Ben Stevens (Executive Director, Council of Athabascan Tribal Governments).

    Committee Reports

    H.R. 3002 - HUD Demonstration Program. On October 2nd, the House Financial Services Committee filed a report to accompany H.R. 3002 (Pearce, R-NM), to establish a demonstration program to authorize the Secretary of Housing and Urban Development (“HUD”) to guarantee obligations issued by Indian tribes to finance community and economic development activities, with an amendment (H. Rept. 110-363).

    S.1200 - Indian Health Care Improvement Act Amendments. On October 16th, the SCIA filed a report to accompany S. 1200 (Dorgan, D-ND), IHCIA reauthorization bill, without amendment (S. Rept. No. 110-197).

    H.R. 505 - Native Hawaiian Government Reorganization Act. On October 18th, the HNRC filed a report to accompany H.R. 505 (Abercrombie, D-HI) (H. Rept. 110-389).

    S. 1347 – Omnibus Indian Advancement Act Amendment. On October 26th, the SCIA filed a report to accompany S. 1347 (Feinstein, D-CA) (S. Rept. No. 110-208).

     

    INDIAN LEGISLATION INTRODUCED - THIRD QUARTER

     

    Senate

    S. 2062 (Dorgan, D-ND) - NAHASDA Reauthorization Act of 2007, to amend NAHASDA and to reauthorize that Act, and for other purposes. STATUS: introduced and referred to the SCIA on September 18th; SCIA marked up and ordered reported the bill favorably without amendment on September 27th.

    S. 2087 (Dorgan, D-ND) - Native American Omnibus Technical Corrections Act of 2007, to amend certain laws relating to Native Americans to make technical corrections, and for other purposes. STATUS: introduced and referred to the SCIA on September 25th; SCIA marked up and ordered reported the bill favorably without amendment on September 27th.

    S. 2176 (Johnson, D-SD) - Native American Small Business Development Act of 2007, to promote the development of Native American small business concerns. STATUS: introduced and referred to the Senate Small Business and Entrepreneurship Committee on October 17th.

    S. 2195 (Inhofe, R-OK) – to amend the Internal Revenue Code of 1986 to extend the Indian employment credit and the depreciation rules for property used predominantly within an Indian reservation. STATUS: introduced and referred to the Senate Finance Committee on October 18th.

    S. 2216 (Inhofe, R-OK) - to amend the Internal Revenue Code of 1986 to extend the Indian employment credit and the depreciation rules for property used predominantly within an Indian reservation. STATUS: introduced and placed on the Senate Legislative Calendar on October 23rd.

    House

    H.R. 3522 (Udall, D-NM) - to ratify a conveyance of a portion of the Jicarilla Apache Reservation to Rio Arriba County, State of New Mexico, pursuant to the settlement of litigation between the Jicarilla Apache Nation and Rio Arriba County, State of New Mexico, to authorize issuance of a patent for said lands, and to change the exterior boundary of the Jicarilla Apache Reservation accordingly. STATUS: introduced and referred to the HNRC on September 10th.

    H.R. 3585 (Baca, D-CA) - Native American Heritage Day Act of 2007, to honor the achievements and contributions of Native Americans to the United States. STATUS: introduced and referred to the House Education and Labor Subcommittee on Higher Education, Lifelong Learning, and Competitiveness on October 17th. (This is the companion bill to S. 1852).

    H.R. 3699 (Oberstar, D-MN), to provide for the use and distribution of the funds awarded to the Minnesota Chippewa Tribe in Minnesota Chippewa Tribe v. United States, Docket Nos. 19 and 188, United States Court of Federal Claims. STATUS: introduced and referred to the HNRC on September 27th.

    H.R. 3709 (Filner, D-CA), to authorize inter-tribal transfers of authority in leases between the Ewiiaapaayp Band of Kumeyaay and the Viejas Band of Kumeyaay. STATUS: introduced and referred to the HNRC on October 1st.

    H.R. 3787 (McHugh, R-NY) - Land in Trust Public Hearing Act, to require that the Secretary of the Interior hold at least one public hearing in the surrounding community where land requested to be taken into trust for an Indian tribe is located in order to ascertain the needs and interests of that surrounding community. STATUS: introduced and referred to the HNRC on October 9th.

    H.R. 3788 (Myrick, R-NC), to ensure that no federal law shall prevent the Tuscarora Nation of Indians of the Carolinas from seeking federal recognition as an Indian tribe. STATUS: introduced and referred to the HNRC on October 9th.

    H.R. 3960 (Kind, D-WI). Native American Full Access to Dental Care Act, to amend the Internal Revenue Code of 1986 to exclude from gross income loan repayments made under the Indian Health Service Loan Repayment Program in return for service as a dentist. STATUS: introduced and referred the House Ways and Means Committee on October 24th.

    H.R. 4012 (Wilson, R-NM). Native American Veterans Language Assistance Act, to establish a grant program to provide Native American veterans with language resources to facilitate access to medical services provided by the Department of Veterans Affairs. STATUS: introduced and referred to the House Veterans’ Affairs Committee on October 30th.

    H.R. 4025 (Boyda, D-KS), to amend the Surface Mining Control and Reclamation Act of 1977 to clarify the minimum distribution under that Act to certain States and Indian tribes. STATUS: introduced and referred to the HNRC on October 31st.

    H.R. 4027 (Hastings, R-WA), to amend the Native American Graves Protection and Repatriation Act (“NAGPRA”) so that it will be interpreted in accordance with the original intent of Congress to require a significant relationship be found between remains discovered on Federal lands and presently existing Native American tribes for those remains to be applicable under NAGPRA. STATUS: introduced and referred to the HNRC on October 31st.

     

    House Resolutions

    H.Res.710 (Issa, R-CA), commemorating the 125th Anniversary of the establishment of the Pechanga Indian Reservation. STATUS: introduced and referred to the HNRC on October 3rd.

    H.Res.744 (Wilson, R-NM), recognizing the contributions of Native American veterans and calling upon the President to issue a proclamation urging the people of the United States to observe a day in honor of Native American veterans. STATUS: introduced and referred to the House Committee on Veterans’ Affairs on October 15th; the House passed H.Res.744 on November 5th.

    H.Res.764 (Hastings, D-FL), providing for the consideration of H.R. 505, to express the policy of the United States regarding the United States relationship with Native Hawaiians and to provide a process for the recognition by the United States of the Native Hawaiian governing entity. STATUS: the Rules Committee reported H.Res.764 on October 22nd; the House passed H.R. 505 on October 24th.

     

    EXECUTIVE BRANCH

     

    Dr. Grim’s Nomination Withdrawn. On September 4th, the White House withdrew the reappointment nomination of Dr. Charles Grim to serve as Director of the IHS, Department of Health and Human Services, from the Senate. Dr. Grim cited his family and children in a letter to IHS personnel explaining his request to withdraw his reappointment. On September 18th, the Administration appointed Robert McSwain as the Acting Director of the IHS; McSwain has served as IHS Deputy Director since 2005.

    New Director of Newly-Created Indian Energy Policy Office at the Department of Energy. On September 14th, Steven Morello was appointed as the director of the Department of Energy’s newly created Office of Indian Energy Policy and Programs, which will assist in implementing and managing energy planning, education and efficiency for Indian tribes. The Indian Energy Policy and Program Office will reside within the Department of Energy’s Office of Congressional and Intergovernmental Affairs, where Morello will continue to serve as Deputy Assistant Secretary for Intergovernmental and External Affairs. Morello previously served as general counsel at the Department of the Army.

    Federal Communications Commission (“FCC”) Announces Three Tribal Representatives for the Intergovernmental Advisory Committee (“IAC”). On October 17th, the FCC announced that the following tribal representatives will serve on the IAC: William Micklin (Executive Director, Ewiiaapaayp Band of Kumeyaay Indians Tribe); Jonathan Windy Boy (Tribal Council, Chippewa Cree); and Cherie Moomaw (Colville Business Council, Confederated Tribes of the Colville Reservation). The three tribal members will assist the IAC with the needs of Indian Country, its tribes, and its tribal citizens. The IAC membership is comprised of 15 representatives, who serve for a two-year term, from local, state and tribal governments, and advises the FCC on a range of telecommunications issues for which their governments explicitly or inherently share responsibility or administration with the FCC. The primary focus of the IAC for its current term will be the country’s transition to digital television as the FCC continues its efforts to assist consumers in understanding and preparing for the transition which, by law, must be completed by February 17, 2009.

     

    PUBLIC LAWS

     

    Public Law 110-75 (H.R. 2863). On August 13th, the President signed H.R. 2863 into law authorizing the Coquille Indian Tribe of the State of Oregon to convey land and interest in land owned by the Tribe.

    Public Law 110-76 (H.R. 2952). On August 13th, the President signed H.R. 2952 into law authorizing the Saginaw Chippewa Tribe of Indians of the State of Michigan to convey land and interests in land owned by the Tribe.

    Public Law 110-78 (S. 375). On August 13th, the President signed S. 375 into law waiving application of the Indian Self-Determination and Education Assistance Act (“ISDEAA”) to a specific parcel of real property transferred by the U.S. to two Indian tribes in the state of Oregon.

    Public Law 110-82 (H.R. 2358). On September 20th, the President signed H.R. 2358 into law to require the Secretary of the Treasury to mint and issue coins in commemoration of Native Americans and the important contributions made by Indian tribes and individual Native Americans to the development of the United States and the history of the United States.

     

    SUPREME COURT

     

    Federal District Court

    Cobell Historical Accounting Trial Concludes. On October 25th, the Cobell v. Kempthorne trial regarding the historical accounting of Individual Indian Money (“IIM”) trust accounts concluded after just 10 days of testimony. The trial, initially expected to last much longer, was expedited by short presentations and a decision by Judge James Robertson not to visit DOI’s Indian records repository in Kansas. Judge Robertson will determine whether DOI’s accounting plan meets fiduciary trust obligations and whether such accounting was unreasonably delayed He may also decide whether the government has cured breaches of trust identified by Judge Lamberth in 1999. Both sides have until November 30th to submit final arguments recommending how the court should rule.

     

    OTHER

     

    NCAI Multi-Agency Government-to-Government Consultation Planning Call. On September 6th, NCAI hosted a conference call to identify topics for the upcoming 2007 multi-agency consultation session on public health and safety issues, scheduled for November 27th in Albuquerque, New Mexico. Federal agencies requested NCAI to obtain feedback and a tribal perspective of the overall effectiveness of the multi-agency consultation sessions. During the conference call, tribal leaders commented on previous consultation sessions, noting that the Adam Walsh consultation was poorly timed since it was held simultaneously with the Adam Walsh deadline, suggesting that more time is needed during the question and answer portion of the sessions, and raising the need for more focus on solutions and “best practices” as opposed to outlining the current problems that have already been defined. NCAI previously composed a list of suggested topics to be discussed at the November 27th session, including: tribal detention facilities, methamphetamine abuse, Bureau of Indian Affairs (“BIA”) modernization, and Adam Walsh implementation. However, additional topics were suggested during the conference call, including: trust responsibility and performance-based accounting; domestic violence and child abuse, sexual assault, mental health, and habitual offenders; and the “next step” in the process following a consultation session.

    Rally In Support of IHCIA’s Passage. On September 12th, the National Indian Health Board (“NIHB”), NCAI, the National Council on Urban Indian Health, the National Indian Education Association, and the National American Indian Housing Council hosted a rally on Capitol Hill to support the reauthorization of IHCIA. Several Members of Congress, many Tribal Leaders, and the press attended the rally. Senators Jeff Bingaman (D-NM), Max Baucus (D-MT), Jon Tester (D-MT), Byron Dorgan (D-ND), Lisa Murkowski (R-AK) and Daniel Inouye (D-HI) and Representative Frank Pallone (D-NJ) attended and each provided brief remarks in support of passage of the IHCIA reauthorization.

    Internal Revenue Service (“IRS”) Releases CD-ROM That Provides Tribal Tax Guidance. On September 18th, the IRS announced the availability of a new CD-ROM, Tax Tools for Tribes, which provides the following publications and additional guidance on tax policy for Native American tribes: Employment Tax Guide for Tribes (IRS Publication 4268); Gaming and Bank Secrecy Act Law for Tribes (IRS Publication 3908); Employer’s Tax Guide (IRS Publication 15); and Employer’s Supplemental Tax Guide (IRS Publication 15-A). Also available on the CD-ROM is an Excel file for calculating federal income tax withholding on per capita gaming distributions, a “primer” for federal tax issues affecting individual Native Americans, and a guide on hints for avoiding penalties. For more information, contact Telly Meier, Associate for the Indian Law team in the Washington, D.C. office, or visit the IRS website at: http://www.irs.gov/govt/tribes/article/0,,id=174000,00.html

    Environmental Protection Agency (“EPA”) Announces New Internet Site to Assist Tribes with Environmental Compliance. On September 18th, the EPA launched a new web-based resource center that provides information on compliance assistance and pollution prevention for regulated activities for tribal environment professionals and facility owners and operators. EPA’s Office of Environment and Compliance Assurance will also have information on waste management, air and water resources, drinking water, pesticides, wastewater and public safety. In addition, the online resource center will enable viewers to report complaints to the EPA, check the status of facilities in Indian country, obtain information on how to apply for federal grants, and locate EPA personnel who can answer environmental compliance questions. The web-based compliance center is located at http://www.epa.gov/tribalcompliance or the information is also available in the Profile of Tribal Government Operations which may be ordered at (800) 490-9198.

    National Indian Gaming Commission (“NIGC”) Publishes Proposed Rules for Facility License Standards. On October 18th, the NIGC published proposed rules in the Federal Register (72 FR 59003) that add new sections and a new part to the NIGC’s regulations in order to ensure that each place, facility or location where class II or class III gaming will occur is located on Indian lands that are eligible for gaming, as required by the Indian Gaming Regulatory Act (“IGRA”). NIGC maintains that the rules are intended to ensure that gaming facilities are constructed, maintained and operated in a manner that adequately protects the environment and the public health and safety. In addition to issuing gaming facility licenses, which tribes already do, additional requirements will be placed on all gaming tribes. First, tribes would be required to provide the NIGC with at least 120 days notice before issuing a facility license. Second, facility licenses will now have to be renewed at least once every three years. Currently, there is no requirement as to when gaming licenses should be renewed. Third, tribes will now have to submit copies of each facility license it issues to the NIGC within 30 days of issuance. Tribes must also submit an attestation certifying that by issuing the license, the tribe has completed the following:

    • Identification of the environmental and public health and safety laws applicable to its gaming operation;

    • Compliance with those laws; and

    • The construction and maintenance of the gaming facility, and the operation of gaming, is conducted in a manner that adequately protects the environment and the public health and safety.

    Furthermore, the proposed rule would permit the NIGC Chairman to request additional information regarding Indian lands issues and documentation regarding compliance with environment, public health and safety requirements. Finally, the NIGC is seeking to add that failure to hold a valid license may subject a gaming facility to an NIGC closure order. The NIGC will consider comments and decide whether to publish a final rule. Written comments are due by December 3, 2007. For more information, contact Teri Poust, Partner for the Indian Law team in the Los Angeles, CA office.