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Transportation bill riders not related to highways
Thursday, August 11, 2005

Two tribal riders found their way into the $286.4 billion highway transportation bill that was signed into law on Wednesday despite seeing no prior public debate.

It was an odd occurrence, considering that a highway bill is usually the last place one looks for last-minute provisions affecting Indian Country. The annual Interior appropriations bill, which contains funding for Indian programs, is normally the scene for such maneuvering.

In recent years, tribes and their advocates have been able to defeat harmful riders to the Interior bill. To get around the roadblock, lawmakers are turning elsewhere in hopes of getting their tribal provisions passed without being noticed.

Huge omnibus bills that few people read before they are passed have contained some interesting Indian provisions that were never debated. The Commerce, Justice and State appropriations bill has been the site of Indian affairs meddling for two years in a row as well.

Add the transportation bill signed by President Bush yesterday to the list. It contains two significant riders that have nothing to do with highways or transit.

The first rider blocks the Environmental Protection Agency from recognizing tribal authority over tribal lands in Oklahoma without the state's consent. Tribes seeking "treatment as state" designations for water and air programs must sign a "cooperative agreement" with the state and must submit to a public hearing.

No other tribe in the nation is required to go through this process. But in response to the EPA's recent recognition of the Pawnee Nation's authority, Sen. Jim Inhofe (R-Oklahoma) inserted the expansive rider in the final stages of House-Senate negotiation for the transportation bill.

Inhofe had added some language on the issue to the Interior appropriations bill but it didn't make any changes in existing law. The transportation bill, on the other hand, makes substantive changes and appears to end the state of Oklahoma's lawsuit against the EPA in the state's favor. The case was filed in the 10th Circuit Court of Appeals.

The second rider also comes courtesy of Inhofe and other members of Oklahoma's Congressional delegation. They changed an existing law to prevent the Shawnee Tribe from acquiring trust lands just about anywhere in the state. The provision is aimed at blocking a casino in downtown Oklahoma City.

Oddly enough, the Shawnee Tribe was the beneficiary of an omnibus act that became law in the final days of the Clinton administration. The bill recognized the tribe as an federal entity separate from the Cherokee Nation and mandated the acquisition of trust lands under certain conditions.

The rider removes the mandatory aspect of the acquisition and forces the tribe to go through the two-part determination process for gaming, a move that requires state approval. Tribal officials have always said they planned to work with the state and local communities but the process places an extremely high bar on the casino.

According to Sen. Byron Dorgan (D-North Dakota), the rider almost made it into the Interior appropriations bill. At a hearing on July 28, he said he would have supported its inclusion but for whatever reason it was left out.

That didn't matter because Inhofe found another avenue to advance the rider. Coincidentally, both the Interior and transportation bills were cleared by their respective House-Senate conference committees during the last week of July -- shortly before both chambers went on break for the August recess.

The timing ensured that anyone who noticed either rider wouldn't have much time to object. The language only became public on July 28 at 6:59pm. At 1:07am on July 29, the House Rules Committee protected the entire bill from objections.

A few hours later, at 10:15am, the bill was brought up on the House floor. About an hour later, at 11:37am, it passed by a voice vote of 412 to 8. The Senate took up H.R.3 the next day and passed it by a 94 to 4 vote.

The full language of the EPA rider reads as follows:

SEC. 10211. ENVIRONMENTAL PROGRAMS.
(a) OKLAHOMA.—Notwithstanding any other provision of law, if the Administrator of the Environmental Protection Agency (referred to in this section as the ‘‘Administrator’’) determines that a regulatory program submitted by the State of Oklahoma for approval by the Administrator under a law administered by the Administrator meets applicable requirements of the law, and the Administrator approves the State to administer the State program under the law with respect to areas in the State that are not Indian country, on request of the State, the Administrator shall approve the State to administer the State program in the areas of the State that are in Indian country, without any further demonstration of authority by the State.
(b) TREATMENT AS STATE.—Notwithstanding any other provision of law, the Administrator may treat an Indian tribe in the State of Oklahoma as a State under a law administered by the Administrator only if—
(1) the Indian tribe meets requirements under the law to be treated as a State; and
(2) the Indian tribe and the agency of the State of Oklahoma with federally delegated program authority enter into a cooperative agreement, subject to review and approval of the Administrator after notice and opportunity for public hearing, under which the Indian tribe and that State agency agree to treatment of the Indian tribe as a State and to jointly plan administer program requirements."

The full language of the Shawnee Tribe rider doesn't mention the tribe, gaming or Oklahoma. It instead refers to the omnibus that granted the tribe recognition. The language states:

SEC. 10213. TRIBAL LAND.
Section 707(a) of Public Law 106–568 (25 U.S.C. 1041e(a)) is amended—
(1) in paragraph (1) by striking ‘‘(1) IN GENERAL.—’’; and
(2) by striking paragraph (2).

Public Law 106–568 is also known as the the Omnibus Indian Advancement Act. Section 707 originally stated:

SEC. 707. TRIBAL LAND.
(a) LAND ACQUISITION-
(1) IN GENERAL- The Tribe shall be eligible to have land acquired in trust for its benefit pursuant to section 5 of the Act of June 18, 1934 (48 Stat. 985; 25 U.S.C. 465) and section 1 of the Act of June 26, 1936 (49 Stat. 1967; 25 U.S.C. 501).
(2) CERTAIN LAND IN OKLAHOMA- Notwithstanding any other provision of law but subject to subsection (b), if the Tribe transfers any land within the boundaries of the State of Oklahoma to the Secretary, the Secretary shall take such land into trust for the benefit of the Tribe.
(b) RESTRICTION- No land recognized by the Secretary to be within the Cherokee Nation or any other Indian tribe may be taken into trust for the benefit of the Tribe under this section without the consent of the Cherokee Nation or such other tribe, respectively.

Highway Transportation Act:
H.R.3 | Conference Report