The Impact of the Historic 111th Congress on Indian Country

HISTORIC 111TH CONGRESS ADJOURNS

The 111th Congress will be viewed as one of the most productive legislative sessions in recent history for both Indian country and our Nation. The 111th Congress began on January 6, 2009; and, on Wednesday evening at 6:00 P.M., December 22, 2010, the 111th Congress adjourned sine die (a Latin phrase for “without assigning a day for a further meeting or hearing”). In 2010 alone, Indian country enjoyed significant legislative victories. This memo takes a moment to reflect on these achievements.

Indian Health Care Improvement Act

On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act, Title X of which included the reauthorization of the Indian Health Care Improvement Act (IHCIA). The IHCIA reauthorization was authored by Senator Byron Dorgan (D-ND), Chairman of the Senate Committee on Indian Affairs, and reflects more than a decade’s worth of input and back-breaking work by tribal leaders throughout Indian country.

The reauthorization is the first comprehensive update to Indian health laws in 17 years. It includes a permanent reauthorization of all programs in IHCIA, meaning that federal funding authority will never again expire and provide Congress an excuse to not fund these critically important programs. In addition, the reauthorization brings about long needed modernizations to tribal health programs, bringing Indian health care into the 21st century. The new law also contains the following provisions:

• Authorizes new federal programs to stop the epidemic of Indian youth suicide.
• Streamlines the federal grant process for tribal health care programs.
• Authorizes the use of pre-doctoral psychology and psychiatry interns to increase mental health care providers in Indian country.
• Establishes a tele-mental health demonstration project to enhance delivery of mental health services and prevent youth suicides.
• Establishes a demonstration project for youth suicide prevention curriculum to be implemented at tribal schools and colleges.
• Authorizes programs to increase the recruitment and retention of health care professionals and updates the existing scholarship program.
• Authorizes long-term care, including home health care, assisted living, and community-based care.
• Establishes mental and behavioral health programs beyond alcohol and substance abuse, to cover fetal alcohol spectrum disorders, child sexual abuse, domestic violence prevention programs, and others.
• Establishes a demonstration project to incentivize the use of innovative construction methods of health facilities, such as modular component construction and mobile health stations, to stretch existing dollars and improve access to health care services.
• Exempts from personal income tribal government provided health care or health insurance plans.

The IHCIA reauthorization will make great strides in aiding the United States to meet its trust and treaty obligations to provide health care to all American Indians and Alaska Natives.

Tribal Law and Order Act

Four months after signing IHCIA, on July 29, 2010, President Obama signed the Tribal Law and Order Act of 2010. The Act improves Indian country justice systems by: (1) establishing accountability measures on federal justice officials responsible for investigating and prosecuting crime on Indian lands; (2) empowering tribal justice officials to combat crime locally in Indian country; and (3) reauthorizing and amending existing federal programs designed to fund and improve tribal police, courts, corrections, prevention, and juvenile justice.

For decades, many Indian reservations have suffered high rates of violence caused by a broken and divided system of justice. The system forces tribes to rely on federal officials to investigate and prosecute major crimes in Indian country. However, from 2005-2008 federal officials declined to prosecute more than 50% of violent reservation crimes, including up to 75% of alleged sex crimes against children and adult rapes. At the same time, tribal justice systems are handcuffed by federal laws, which limit the ability of tribal courts to punish offenders to no more than one year per one offense. Because of this broken system, Indian country suffers rates of violent crime 2.5 times higher than non-Indian communities. More than 1 in 3 American Indian and Alaska Native women will be raped in their lifetimes, and 2 in 5 Native women will suffer domestic violence.

To address these concerns, Indian country worked with Congress to pass the Tribal Law and Order Act. The Tribal Law and Order Act, Public Law 111-211, provides a comprehensive approach to improve all aspects of the Indian country justice system, including law enforcement, courts, corrections, and prevention.

Regarding federal accountability, the Act imposes measures on those agencies within the federal government that have treaty and legal responsibilities to investigate and prosecute crimes in Indian country. The Act requires federal officials to maintain data on declinations to prosecute reservation crime as well as share evidence with tribal prosecutors when declining to pursue prosecution at the federal level. It also forces the Bureau of Indian Affairs (BIA) to improve coordination with tribal justice officials, improve data collection and sharing of crime data, and to submit spending and unmet needs reports on a wide-variety of tribal justice program areas.

With regard to tribal empowerment, the Tribal Law and Order Act seeks to provide tribal governments with additional tools to combat crime and enable reservation residents see justice done as opposed to hearing about it at far away federal courtrooms. The Act improves the Special Law Enforcement Commission (SLEC) program to deputize tribal police officers to enforce federal laws against all offenders on Indian lands, regardless of their race as Indian or non-Indian. The Act directs the BIA to provide quarterly regional trainings to help tribal officers obtain their commissions, and it requires the BIA to establish standard MOUs that must include a provision of Federal Tort Claims Act protection to tribal SLEC officers acting within the scope of their duties. The Act also amends the Indian Civil Rights Act (ICRA) to acknowledge tribal court felony penal authority. It raises the ICRA one-year limitation on tribal courts to 3 years per offense with a 9-year cap where tribal courts stack or try more than one case at trial where a series of crimes are involved.

The Department of Justice and the BIA have held a number of consultations with tribal leaders and justice officials to begin implementation of the Act.

Tribal Land and Water Settlements / Cobell Settlement

On November 30, 2010, during the lame duck session, Congress also managed to pass the Claims Settlement Act of 2010. The Act authorizes $3.4 billion to settle the Cobell v. Salazar litigation, which began in 1996. The Cobell litigation involves more than a century of mismanagement of individual Indian trust lands by the United States. The settlement establishes a $1.9 billion fund to help consolidate Indian lands and prevent further fractionation. The land consolidation program will provide individual Indians with an opportunity to consolidate and transfer divided ownership interests to tribal governments where they will remain in trust for the benefit of tribal communities. Individual Indians will receive cash payments for these transfers; and, as an additional incentive, transfers will trigger government payments into a $60 million Indian scholarship fund.

The Act also authorizes more than $1 billion to settle four different tribal water rights suits, which involve the White Mountain Apache Tribe, the Taos Pueblo, the Crow Tribe, and the Pueblos of Tesuque, Nambe, San Ildefonso, and Pojaque. The water rights settlements put an end many decades of litigation. The litigation behind the Aamodt water rights settlement alone, which involves the northern Pueblos, was first filed in federal court in 1966. The water settlements will deliver clean drinking water to tribes in New Mexico, Arizona and Montana. For these communities, the permanent water supply will offer economic security and end decades of water allocation controversy and contention among neighboring communities. White House support of four water rights settlements in a single Congress is unprecedented. The settlements reflect the willingness of the parties to work together and put an end to protracted litigation.

Special Diabetes Program for Indians

Congress also reauthorized the critically important Special Diabetes Program for Indians (SDPI) during the lame duck session. President Obama signed the two-year extension into law on December 15, 2010 as part of the Medicare and Medicaid Extenders Act of 2010. The Program authorizes $300 million in funding at a level of $150 million a year to help combat diabetes in Indian country. Congress first passed the SDPI in 1997 in response to the diabetes epidemic in American Indian and Alaska Native communities.

While diabetes continues to plague many tribal communities, Indian health experts point to improvements in reducing the prevalence of the disease and increased diabetes prevention efforts in many Native communities they say are attributable to SDPI funding. For example, a 2007 report by the Centers for Disease Control and Prevention indicated that new cases of dialysis for American Indians due to diabetes have decreased since 1996. Ninety-three percent of Indian communities served by SDPI now offer primary prevention of diabetes services to children and youth, up from less than 10 percent in 1996 before SDPI was implemented. Other studies highlight results of the Program’s prevention efforts, including increased physical activity programs in tribal schools, wellness programs, and increased nutrition education. 


Carcieri v. Salazar: Supreme Court’s Attack on Tribal Sovereignty

Despite these many significant accomplishments, Congress failed to enact legislation to reverse the Supreme Court’s attack on tribal sovereignty in the February 2009 Carcieri v. Salazar decision. In Carcieri, the Court overturned 75 years of precedent in finding that the Indian Reorganization Act authorized the Secretary of the Interior to place land into trust for only those Tribes “under federal jurisdiction” as of 1934.

The adverse effects of the Carcieri decision across Indian country are widespread. The decision has placed an informal Administrative freeze on the land into trust process. It is deterring investment and economic development throughout Indian country. It has the potential to open up past criminal convictions that were based on the fact that the crimes occurred on Indian lands. And the case is spawning dozens of federal court challenges to past and pending land into trust determinations. Many of these suits are being defended by the Interior Department at taxpayer expense, and are working their way up the federal court system back to the U.S. Supreme Court for added attacks.

Tribes nationwide united behind the legislative effort to address the Carcieri decision. Congressman Tom Cole (R-OK) offered an amendment to the House Fiscal Year (FY) 2011 Interior Appropriations bill to restore the Secretary’s tribal land into trust authority to all federally recognized Indian tribes. The House Interior Appropriations Subcommittee unanimously adopted the Cole amendment on July 22, 2010.

The House of Representatives included the Cole amendment in the Full-Year Continuing Appropriations Act, which it passed by a vote of 212-206 on December 8, 2010. However, the Senate could not muster 60 votes to pass any of the FY 2011 appropriations bills, and instead had to settle for a short term continuing resolution that will fund the government at FY 2010 levels through March 4, 2011.

Despite the failure to enact final passage of legislation to address Carcieri, Indian country’s significant efforts in 2010 educated many Members of Congress about the Supreme Court’s misguided decision and its consequences. This advocacy also reaffirmed commitments from the Obama Administration and the Interior Department to the policy that all federally recognized Indian tribes must be able to equally access the land into trust process. These commitments are important given that the bulk of activity in 2011 to address the Carcieri decision will now turn to the Interior Department’s attempt to administratively implement the decision.

Passing the Gavel: Senator Byron Dorgan Retires

As the 111th Congress comes to an end, so ends an era with the departure of Senator Byron Dorgan, Democrat from North Dakota. Senator Dorgan most recently chaired the Indian Affairs Committee and the Energy and Water Development Appropriations Subcommittee. His tireless advocacy on behalf of Indian country is a major reason for the significant victories attained in 2010.

Senator Dorgan first came to Washington, D.C. in January of 1981 as the at-large Congressman for North Dakota. He moved to the U.S. Senate in 1992. For thirty years he was a zealous advocate for Indian tribes in North Dakota and throughout the nation. Over the past decade, Senator Dorgan did much to educate his Senate colleagues through passionate floor statements, explaining the fact that Indian tribes ceded hundreds of millions of acres of their homelands to the United States in return for promises to provide education, health care, public safety, and the general welfare of tribal communities.

The following is an excerpt from Senator Dorgan’s farewell address in the Senate on December 9, 2010:

“[The] American Indians were here first. We are talking about the first Americans. They greeted all of us. They now live in Third World conditions in much of this country, and we have to do better. We have to keep our promises and we have to honor our treaties. In this Congress, I have had the privilege of chairing the Indian Affairs Committee. This Congress, however, as tough as it has been, has done more on Indian issues than in the previous 40 years. We passed the Indian Health Care Improvement Act, the first time in 17 years. We passed the Tribal Law and Order Act that I and others helped write, which is so very important. We just passed yesterday the special diabetes provisions that are so important to the Indians. We put $2.5 billion in the Economic Recovery Act to invest in health care facilities and education and the other things that are necessary in Indian Country. We just passed the Cobell settlement which deals with a problem that has existed for 150 years in which looting and stealing from Indian trust accounts went on routinely. President Obama signed the bill last night at the White House. Those five things are the most important elements together that have been done in 40 years by a Congress dealing with Indian issues. But the work is not nearly over, and we have to keep our promises and honor our trust agreements.”

***

“About 15 years ago, I was leading a delegation of American Congressmen and Senators to meet with a group of European members of Parliament about our disputes in trade. About an hour into the meeting, the man who led the European delegation slid back in his chair, leaned across to me, and he said: Mr. Senator, we have been speaking for an hour about how we disagree. I want to tell you something. I think you should know how I feel about your country. I was a 14-year-old boy on a street corner in Paris, France, when the U.S. liberation Army marched down the Champs-Elysees. An American soldier reached out his hand and gave me an apple as he marched past. I will go to my grave remembering that moment, what it meant to me, what it meant to my family, what it meant to my country.

“I sort of sat back in my chair, thinking, here is this guy telling me about who we are and where we have been and what we have meant to others. It was pretty unbelievable. Our problems are nothing compared to where we can go and what we can be as a country, if we just do the right thing.

“This Senate has a lot to offer the American people. I know its best days are ahead. That splendid torch, that moment, that is here. That torch exists in this Chamber as well. I feel unbelievably proud to have been able to serve here with these men and women for so long. I am going to go on to do other work. But I will always watch this Chamber and those who will continue to work in this Chamber and do what is important for this country’s future.”

Changes Ahead in the 112th Congress

Tribes in North Dakota and throughout Indian country will sorely miss Senator Dorgan’s leadership. However, as he noted in his farewell address, Congress will move on, and the work of the Senate Committee on Indian Affairs will continue. While the final decision has not yet been made, we understand that Senator Daniel Akaka (D-Hawaii) will likely be named the new Chairman of the Senate Committee on Indian Affairs. Senator Akaka, a Native Hawaiian and the only indigenous member of the U.S. Senate, has been a strong advocate of tribal sovereignty. A World War II veteran, Senator Akaka chaired the Committee on Veterans’ Affairs in the 111th Congress. We will immediately inform you if the Indian Affairs Committee chairmanship is confirmed.

As reported earlier, Republicans made significant gains during the November 2, 2010 elections. Republicans took a 242-193 advantage in the House of Representatives (a 63 seat pickup), and gained six seats in the Senate to close the gap to 53 Democrats to 47 Republicans.

Republicans will lead the House of Representatives in the 112th Congress, which will last during calendar years 2011-2012. The 112th Congress will convene on January 5, 2011, when newly elected senators and congressmen will be sworn in and given their committee assignments. Mapetsi will soon provide you with an outlook of what Indian country can expect from the 112th Congress, including a listing of congressional members who will be key decision makers and an expected legislative agenda for the year ahead.

We wish you, your families, and the tribal communities that you represent a blessed holiday season and a safe and prosperous new year!

Congress to Pass Short Term Continuing Resolution (CR) without Carcieri Provision

Congress to Pass Short Term Continuing Resolution (CR) without Carcieri Provision

The efforts of Congress to pass the FY11 spending bills have been filled with high drama, brinksmanship, and tremendous amounts of work. In the end, Congress has little to show for its actions and simply kicked the can down the road until March.

On Wednesday, December 8th, by a vote of 212-206, the House of Representatives passed the Full-Year Continuing Appropriations Act, H.R. 3082, which contained a provision to address the Carcieri decision and which also would have funded the government through the entire fiscal year 2011 (September 30, 2011). A continuing resolution is a stream-lined bill that funds the government at last year’s levels and does not provide any new funding. Congress passes continuing resolutions when it becomes clear that it can not pass its regular order appropriations bills. Previously, the White House issued a letter to the House and Senate Appropriations Committees expressing, among other things, the need for the inclusion of a clean Carcieri fix in a continuing resolution.

In the Senate, instead of taking up H.R. 3082 as passed by the House, Majority Leader Reid first attempted to pass an Omnibus Appropriations Act put together by Senator Inouye that would have increased spending levels above FY 2010 levels. The version of the Omnibus Appropriations Act that Senator Inouye filed for Senate consideration did not include a Carcieri fix. Previously, the day before on Monday, December 13th, Senator Inouye told a group of tribal leaders that he had taken the Carcieri fix out of the Omnibus Appropriations Act due to opposition to it by certain Democrat and Republican Senators. On Wednesday, December 15th, Indian country obtained signatures from 21 Senators urging Majority Leader Reid and Senator Inouye to amend the Omnibus Appropriations Act to include a provision to address the Carcieri decision. Click here to see the letter. Late last week, Senators Reid and Inouye acknowledged that they did not have the votes to pass the Omnibus due to Republican opposition to it and pulled the bill from the Senate calendar.

Due to the inability of Majority Leader Reid to round up the necessary 60 votes to move a long term CR and the insistence of Minority Leader McConnell that the Republicans would only vote for a short-term CR, Senator Reid moved forward with the 75-day CR on Sunday, December 19th. This CR will fund the government through March 4, 2011, at FY 2010 levels with some exceptions. The short term CR contains very little report language and no earmarks. The full Senate is expected to take up the short term CR today on Tuesday, December 21st. The Senate likely has the votes to pass this short term CR, and the House will likely approve the measure that same day. Click here to view the short term CR and a summary of the provisions in it. The more fiscally conservative 112th Congress will develop a measure to fund the government for the remaining 7 months of FY 2011 (through September 30, 2011).

Next Steps for Carcieri

Passage of the short term CR is the final blow to Indian country’s national efforts to enact a provision to address the Carcieri decision in the 111th Congress. While we believe that some in Congress will again attempt to enact such a provision in the 112th Congress, the battle to enact a clean Carcieri fix will face a steeper climb in 2011.

In addition to the legislative attempts to address Carcieri, Indian country will turn its attention to the Interior Department, which will attempt to implement the Carcieri decision administratively. The Supreme Court’s Carcieri decision provided little guidance in explaining the meaning of the Indian Reorganization Act’s phrase “recognized Indian tribe now under federal jurisdiction.” The Interior Department will strive to craft guidance or a proposed rule to clarify the meaning of this phrase in a manner that will be granted deference by the federal courts.

Congress Passes Bill to Place Land into Trust for Hoh Indian Tribe

Congress Passes Bill to Place Land into Trust for Hoh Indian Tribe

On Wednesday, December 15, 2010, the House of Representatives passed H.R. 1061, the Hoh Indian Tribe Safe Homelands Act, under suspension of the rules by voice vote. The bill awaits President Obama’s signature.

This legislation was needed to relocate the Hoh village to higher ground. The current Reservation, which was established by Executive Order in 1893, consists of 443 acres in northwest Washington state and is hemmed in by the Pacific Ocean, the wild Hoh River, and Olympic National Park. The Reservation lies in a flood plain and tsunami zone, and the changes in ocean tide and the direction of the river have reduced the size of the Reservation over time.

The new law directs the Secretary of the Interior to place approximately 471 acres of federal and non-federal land contiguous to the existing Hoh Reservation into trust for the benefit of the Hoh Tribe. The new lands are located out of harm’s way and will enable the Tribe to move its housing and government service buildings to safe areas.

Hoh Tribal Chairwoman Maria Lopez gave the following statement after passage of the Act: “Words can’t express the joy that I feel for our people of the Hoh Village. I want to thank the bill’s sponsors, Congressman Norm Dicks and Senators Patty Murray and Maria Cantwell, as well as co-sponsor Congressman Tom Cole. On the State level, we of course want to thank Governor Christine Gregoire – the sponsor of the State enabling legislation – and many others on the State and local government level….”

“This news could not have come at a better time for the Hoh Tribe. We nearly avoided yet another flooding this past weekend, and the rainy season is upon us. This continuous threat makes the urgency to implement this legislation all the more immediate. We hope that President Obama will expeditiously sign the bill, and once that is done, we look forward to working with the various agencies on implementation to formally place the land into trust and begin help in relocating and rebuilding our Village.”

President Obama Holds Second White House Tribal Nations Conference

President Obama Holds Second White House Tribal Nations Conference: Announces U.S. Support for U.N. Declaration on the Rights of Indigenous Peoples.

On Thursday, December 16th, President Obama hosted the second annual White House Tribal Nations Conference with leaders of the 565 federally recognized Indian tribes. Nine cabinet secretaries and dozens of high ranking federal officials attended with President Obama.

The President stated his administration is focused on improving the economy and creating jobs. He discussed a number of the administration’s successes in Indian country over the past year, including implementation of the Recovery Act to rebuild tribal roads and infrastructure, reauthorization of the Indian Health Care Improvement Act, and passage of the Tribal Law and Order Act. The biggest piece of news delivered by the President was his announcement that the United States would support the United Nations Declaration on the Rights of Indigenous Peoples, an announcement decades in the making.

After hearing remarks by the President, tribal leaders met in break-out sessions to discuss solutions to improving 5 issue areas affecting all of Indian country. These sessions included: (1) the nation-to-nation relationship; (2) education, health care, and community services; (3) economic development, housing, and infrastructure; (4) tribal land, cultural protection, and natural resources; and (5) public safety and homeland security.

Complete remarks of President Obama at the conference can be found here.

The U.S. State Department’s official announcement on the support of the U.N. Declaration can be found here.

Congress Reauthorizes and Funds Special Diabetes Program for Indians

Congress Reauthorizes and Funds Special Diabetes Program for Indians

On December 9, 2010, the U.S. House of Representatives passed H.R. 4994, the Medicare and Medicaid Extenders Act of 2010, which includes a two-year reauthorization of the Special Diabetes Program for Indians (SDPI) and the Special Diabetes Program for Type 1 Diabetes. The Senate passed this legislation the day before.

This two-year extension provides $300 million for SDPI over the next two years at a level of $150 million per year for Indian country. The President is expected to sign the legislation into law.

Click here to learn more about the SDPI program.

House Passes Clean Carcieri Fix on Year-Long CR

HOUSE PASSES CLEAN CARCIERI FIX ON YEAR-LONG CR

On December 8, the House of Representatives, by a vote of 212-206, approved a $1.1 trillion continuing resolution (CR) to fund the federal government through September 30, 2011. The bill freezes FY 2011 discretionary appropriations at FY 2010 levels, providing $45.9 billion less than President Obama requested in his Budget back in February for FY 2011.

Importantly to Indian country, the bill includes a provision that would reverse the Supreme Court’s attack on tribal sovereignty in the February 2009 Carcieri v. Salazar decision. The provision would reaffirm the Interior Secretary’s authority to place land into trust for all federally recognized Indian tribes. The provision is identical to the amendment offered by Congressman Tom Cole (R-OK) and approved by the Interior appropriations subcommittee in July of 2010. No provision to amend the Indian Gaming Regulatory Act (IGRA) is included in the CR.

However, this is not the end of the road for FY 2011 spending. The CR now moves to the Senate. In the Senate, if there are the requisite 60 votes, then the Senate will pass an omnibus appropriations bill that would increase FY 2011 spending by $19 billion over FY 2010 levels in lieu of the House-passed CR. In this scenario, the omnibus would then go to the House for passage. If there are not enough votes to pass an omnibus, then the Senate will pass a year-long CR.

House of Representatives Passes Historic Legislation to Settle Cobell and 4 Native American Water Rights Suits

House of Representatives Passes Historic Legislation to Settle Cobell and 4 Native American Water Rights Suits

On November 30, 2010, the House passed Cobell settlement legislation and settlement legislation for 4 different water rights suits of Native American tribes in a bill captioned the Claims Settlement Act of 2010 by a vote of 256-152. The water rights settlements resolved suits brought by the White Mountain Apache Tribe, the Taos Pueblo, the Crow Tribe, and the Pueblos of Tesuque, Nambe, San Ildefonso, Pojaque. Previously, on November 19, 2010, the Senate passed the bill by unanimous consent. President Obama is expected to sign the bill into law. For more information about the legislation, please see a statement by Interior Secretary Ken Salazar on the White House Blog.