Appeals Court Rules ANC’s Not Eligible to Receive CARES Act Funding

Appeals Court Rules ANC’s Not Eligible to Receive CARES Act Funding

Today, the DC Circuit Court of Appeals ruled in the Chehalis v. Mnuchin case that Alaska Native Corporations (ANC’s) are not eligible to receive funding from the CARES Act Title V – Coronavirus Relief Fund, overturning the District Court decision. The Appeals Court ruled that “ANCs are eligible for Title V funding only if they qualify as an “Indian tribe” under ISDA,” however “[b]ecause no ANC has been federally “recognized” as an Indian tribe, as the recognition clause requires, no ANC satisfies the ISDA definition.” Thus, the Appeals Court found that ANC’s are ineligible to receive funding under Title V of the CARES Act, because they are not federally recognized as tribes. It is not clear at this point if Treasury or the ANC’s will pursue further litigation.

House Democrats and White House Agree on CR to Fund the Government Through Dec. 11

HOUSE DEMOCRATS AND WHITE HOUSE AGREE ON CONTINUING RESOLUTION TO FUND GOVERNMENT THROUGH DEC. 11

Last night, House Democrats and the White House reached an agreement on a Continuing Resolution (CR) to fund the government at current levels through December 11. The agreement resolved disputes over additional aid to farmers affected by trade policy by providing more than $20B and additional nutrition assistance by providing over $8B. As we previously reported, the bill also extends the Special Diabetes Program for Indians (SDPI) to December 11 and transportation programs for another year to September 30, 2021. The House passed the bill last night, and the Senate is expected to pass the bill later this week with the President signing it before the September 30 deadline.

Nation Mourns the Passing of The Honorable Ruth Bader Ginsburg

Nation Mourns the Passing of The Honorable Ruth Bader Ginsburg

Last Friday evening, Supreme Court Justice Ruth Bader Ginsburg passed away at the age of 87. She was at home surrounded by family after battling a resurgence of pancreatic cancer.

Ginsberg’s casket arrived at the U.S. Supreme Court this morning and she will lie in repose at the Court today and tomorrow. Then, as the first woman to do so, she will lie in repose at the U.S. Capitol this Friday. Since news of her passing, thousands of people have gone to the Court grounds to pay their respects and to leave flowers, cards, and other remembrances to express their gratitude for her service, perseverance, grit, and commitment to equality for all.

Nominated by President Bill Clinton in 1993, Ginsburg was the second woman to sit on the Supreme Court. She attended Cornell University and Harvard and Columbia Law Schools. After law school, she became a professor at Rutgers and then at Columbia, as the law school’s first female tenured professor. She became the director of the ACLU’s Women’s Rights Project where she argued six gender discrimination cases before the Supreme Court, winning five, and persuading the bench that gender discrimination is a violation of the Constitution’s equal protection clause.

In 1980, Ginsberg was appointed to the U.S. Court of Appeals for the District of Columbia, the second most powerful federal court. She was confirmed to the U.S. Supreme Court in 1993 where she was a consistent moderate liberal. She took on the role of senior liberal justice after 2010, which became increasingly important as the balance of opinion shifted on the Court. Her scathing dissents on conservative majority decisions, particularly on women’s rights, made her a celebrated figure on the left.

Nomination & Confirmation Process to fill Court Vacancy

Two hours after the Ginsburg family announced her passing, Senate Majority Leader Mitch McConnell put out a statement that “President Trump’s nominee will receive a vote on the floor of the United States Senate.”

Article II section 2 of the Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court…” The process begins with the President officially nominating a candidate, and that nomination is sent to the Senate Judiciary Committee (Committee) for consideration. In the past, the Committee has always held hearings and requested relevant documents and information on judicial nominees. The Committee will vote on the nomination and send its recommendation to the full Senate. The full Senate then debates the nomination. The Senate rules previously allowed unlimited debate (a practice known as filibustering) and to end debate, it required the votes of 3/5 of the Senate or 60 senators (known as the cloture vote). In April 2017, the Senate changed this rule and lowered the required votes to 51 to end debate on Supreme Court nominations (this is commonly known as “the nuclear option”). After debate ends, the Senate will vote on the nomination, and the nominee is confirmed by a simple majority of “yes” votes. If there is a tie, the Vice President casts the deciding vote.

In 2016, after the death of Justice Antonin Scalia, President Obama quickly named Judge Merrick Garland to fill the seat. Widely regarded as a moderate, Garland had been praised in the past by many Republicans. Even before Obama had named Garland and, in fact, only hours after Scalia’s death was announced, Senate Majority Leader Mitch McConnell declared any appointment by the sitting president to be null and void. He said the next Supreme Court justice should be chosen by the next president — to be elected 11 months later. The Senate did not consider Garland and when Trump won the election, he quickly nominated Neil Gorsuch to the vacant seat.

Numerous Republicans during the Garland nomination process spoke out in support of holding open the seat due to the impending election. This time, those same Republicans are saying the seat should be filled immediately, despite a mere 41 days until Election Day.

McConnell has stated he will move quickly and fill the seat before Election Day, but that strategy could result in several vulnerable Republican Senators losing their seats come November. On the other hand, it could also motivate conservative voters who might be feeling apathetic about Trump. Senate Judiciary Committee Chairman Lindsay Graham (R-SC), who is up for re-election and facing a tough challenge from Jaime Harrison, stated yesterday that Senate Republicans have at least 51 votes to confirm whoever Trump nominates for the Supreme Court vacancy created by the passing of Ginsburg. Trump indicated he will announce his nomination for this vacancy this Saturday.

Democratic Senators are being vocal about the hypocrisy in McConnell’s statements and decision to move forward. The Senate structure, however, gives the minority very few tools to block the nomination, especially since the 2017 rule changes.

House Democrats Introduce Continuing Resolution to Fund the Government

HOUSE DEMOCRATS INTRODUCE CONTINUING RESOLUTION (CR) TO FUND GOVERNMENT THROUGH DECEMBER 11; REPUBLICANS NOT IN AGREEMENT YET

Yesterday, House Democratic Leadership introduced H.R. 8319, the Continuing Appropriations Act, 2021 and Other Extensions Act which would fund the federal government at current (FY20) funding levels through December 11. House Democrats introduced the CR after negotiations with the White House and Senate Republicans broke down late last week over Republican demands to add more than $20B in additional aid to farmers, which has been used to offset the impacts to farmers from the Administration’s own trade policies.

Currently, the House plans to pass the CR tomorrow without any additional funding for farmers, but so far, Senate Republicans have signaled their opposition to the bill. Despite these disagreements, both Democrats and Republicans have indicated that they want to avoid a shutdown on October 1, and it is expected that they will ultimately reach an agreement on a CR. The House CR also includes a number of expiring provisions that are likely to be included in any final CR, including an extension of the Special Diabetes Program for Indians (SDPI) to December 11 and a one-year extension for all transportation programs through September 30, 2021.

House Advances Tribal Bills

House Advances Tribal Bills

Today, the U.S. House of Representatives passed 6 Indian Country-related bills under suspension of the House rules. Several of these bills had previously passed the Senate and are expected to be signed into law.

Below is a short summary of each of these bills with their current status in Congress:

S. 209, PROGRESS for Indian Tribes Act
Sponsored by Sen. Hoeven (R-ND) with 5 bipartisan co-sponsors. The House companion bill, H.R. 2031, is sponsored by Rep. Haaland (D-NM) with 14 bipartisan co-sponsors.

The bill constitutes the most significant amendment to the Interior Department’s Indian Self-Governance program since 2000. It would align the Interior Department’s Self-Governance compacting procedures with the Indian Health Service procedures for negotiating compacts, amending compacts, and retrocession of programs (primarily by codifying existing regulations). The bill also limits the Secretary’s ability to delay compact negotiations and sets stricter time frames on the release of funding. While the bill falls short of expanding non-BIA programs eligible for Self-Governance compacting, it notes that Interior has discretionary authority to compact with tribes for Interior programs that have a special geographic, historical, or cultural significance to a petitioning tribe. Below is a list of additional changes to the Interior Self-Governance program:

  • Requires Interior to clarify rationale for declining tribal proposals in compacts;
  • Prohibits the Department from imposing unauthorized compact terms;
  • Reinforces carry-over authority and procedures for award funding;
  • Clarifies procedures for tribal appeals and waiver requests;
  • Clarifies construction oversight roles to ensure fiscal prudence and public safety;
  • Establishes clear payment schedules for all parties involved

The Senate passed S. 209 by unanimous consent on June 27, 2019. On Monday, September 21, 2020, the House passed the bill under suspension of the rules by voice vote. The bill will now be sent to the President for signature and final enactment into law.

S. 294, the Native American Business Incubators Act
Sponsored by Sen. Udall (D-NM) with 5 bipartisan co-sponsors. The House companion bill is sponsored by Rep. Haaland (D-NM) with 11 bipartisan co-sponsors.

The bill would create a competitive grant program within Interior’s Office of Indian Energy & Economic Development to establish and maintain business incubators that will help entrepreneurs open small business that will serve tribal communities. The 3-year grants require a 25% match from the applicant. The bill authorizes $5 million to appropriated annually for the program.

The Senate passed S. 294 by unanimous consent on June 27, 2019. On Monday, September 21, 2020, the House passed the bill under suspension of the rules by voice vote. The bill will now be sent to the President for signature and final enactment into law.

S. 227, Savannah’s Act
Sponsored by Sen. Murkowski (R-AK) with 27 bipartisan co-sponsors. The House companion bill, H.R. 2733, is sponsored by Rep. Torres (D-CA) with 60 bipartisan co-sponsors.

The bill requires the Justice Department to: review, revise and develop law enforcement protocols to address cases of missing and murdered Native Americans; train law enforcement on how to record the tribal enrollment of victims in federal databases; consult with tribes on how to improve data and tribal access to federal criminal databases for cases of missing and murdered Native Americans; develop and implement a strategy to notify citizens of the National Missing and Unidentified Persons System; establish guidelines, in consultation with tribes, for responding to cases of missing or murdered Native Americans; and report to Congress on the status of missing and murdered Native Americans and recommendations on how to improve data collection on the crisis.

The Senate passed S. 227 with an amendment by unanimous consent on March 11, 2020. On Monday, September 21, 2020, the House passed the bill under suspension of the rules by voice vote. The bill will now be sent to the President for signature and final enactment into law.

S. 982, the Not Invisible Act
Sponsored by Sen. Cortez Masto (D-NV) with 8 bipartisan co-sponsors. The House companion bill, H.R. 2438, is sponsored by Rep. Haaland (D-NM) with 60 bipartisan co-sponsors.

The bill directs Interior to designate an official within BIA’s Office of Justice Services to coordinate efforts to address and prevent the murder, trafficking, and support the recovery of missing indigenous men and women on Indian lands and in urban centers. It directs the BIA to establish inter-agency efforts with DOJ’s Office of Justice Programs, Office of Tribal Justice, COPS, VAWA, and the FBI.

The bill also establishes a Joint Commission within Interior that must publish a report to Congress with recommendations for Interior and DOJ to take to help combat violent crime against Indians on Indian lands, reduce gaps in services and coordination among law enforcement serving Indian lands, and include strategies to identify, report, and respond to instances of missing and murdered persons and human trafficking.

The Senate passed S. 982 with an amendment by unanimous consent on March 11, 2020. On Monday, September 21, 2020, the House passed the bill under suspension of the rules by voice vote. The bill will now be sent to the President for signature and final enactment into law.

H.R. 895, the Tribal School Federal Parity Insurance Act
Sponsored by Rep. Dusty Johnson (R-SD) with 13 bipartisan co-sponsors. The Senate bill, S. 279, is sponsored by Sen. Thune (R-SD) with 8 bipartisan co-sponsors. The Senate Committee on Indian Affairs approved the bill during markup on May 15, 2019.

The bill seeks to provide added incentives/benefits to serving as employees at Indian schools. The bill would make BIE tribal grant school employees eligible for participation in the Federal Employee Health Benefits and the Federal Employees Group Life Insurance programs.

On Monday, September 21, 2020, the House passed the bill under suspension of the rules by voice vote. The bill will now be sent to the Senate for final consideration.

H.R. 4957, the Native Child Protection Act
Sponsored by Rep. Gallego (D-AZ) with 11 bipartisan co-sponsors. There is no Senate companion bill.

The bill amends and updates the Indian Child Protection and Family Violence Prevention Act of 1990. The goal of the 1990 law was to identify the scope of violence experienced by Native children, fill gaps in tribal child welfare and domestic violence programs, and reduce incidents of violence by providing funds for mental health treatment. It mandated greater coordination between law enforcement and child protection agencies serving Native children, improved reporting standards, and required criminal background checks for BIA, IHS, and tribal employees with contact or control over Native children. The 1990 law also authorized funding to establish Indian Child Resource and Family Services Centers in each of the BIA regions. The centers were never established, and the law expired along with past appropriations in 1997.

H.R. 4957 seeks to revive and update the goals of the 1990 law. It replaces the regional Resource Centers with a National Indian Resource Services Center to provide tribes with technical support and training on the prevention of child abuse, family violence, and child neglect. The Center would work with other federal agencies responsible for public safety and health care in Indian Country in gathering data and providing comprehensive support to tribes. The BIA is required to submit a report to Congress within two year of enactment.

The bill was developed in coordination with the National Indian Child Welfare Association (NICWA).

On Monday, September 21, 2020, the House passed the bill under suspension of the rules by voice vote.