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

December 21st, 2010

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.

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