The Impact of the Historic 111th Congress on Indian Country >>

December 28th, 2010


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!

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