From left, Chasity Salvador of the All Pueblo Council of Governors Youth Committee, Rep. Deb Haaland (D-New Mexico) and Ann Barudin of Kewa Pueblo pose after an environmental justice roundtable, held during the Congressional recess in Santa Fe, New Mexico, on April 13, 2019. Photo by Monica Sanchez / House Committee on Natural Resources Democrats

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Indian Country's legislative priorities inch forward in divided Congress

Monday, April 29, 2019

By Acee Agoyo

Congress has yet to pass a stand-alone tribal bill since the start of the 116th session but Democrats continue to push some of Indian Country's priorities forward in an otherwise divided political environment.

On Monday, the Democrat-controlled House of Representatives is scheduled to pass two Indian bills according to the Majority Leader's Schedule. That brings the total number of stand-alone tribal measures passed by the chamber to four since January.

So far, the Republicans who control the Senate have yet to take up any of the pro-tribal legislation or pass any of their own. But it's still early in the session -- during the 115th Congress, it took nearly a year before lawmakers in both chambers were able to send a bill to President Donald Trump.

The Trump era, however, has not been exactly a boon for tribal interests. Despite the legislative and executive branches of government being under Republican control for two whole years, Indian Country saw far fewer legislative achievements than any in recent history.

"He inherited a pretty good situation," attorney Aurene Martin, a citizen of the Bad River Band of Lake Superior Chippewa who has worked in Indian law and policy for two decades, said at the Wiring the Rez conference earlier this year.

"He should have been able to parlay that into great legislative successes," Martin continued, "which he did not do."

The Lone Pine In-lieu Fishing Site in Oregon is one of many along the Columbia River where tribal citizens endure substandard living conditions despite being promised access in treaties their ancestors signed with the United States. Photo: Columbia River Inter-Tribal Fish Commission

#HonorTheTreaties

• H.R.91, the Columbia River In-Lieu and Treaty Fishing Access Sites Improvement Act

One of the many items that failed to make it across the finish line in the last session of Congress was a bill to improve conditions at treaty fishing sites along the Columbia River. So H.R.91, the Columbia River In-Lieu and Treaty Fishing Access Sites Improvement Act, is back on the agenda.

The bill authorizes the Bureau of Indian Affairs to assess sanitation and safety conditions at those sites in Oregon and Washington. It also authorize the BIA to spend money to make any improvements -- an effort estimated to cost only around $11 million over the next few years, according to the Congressional Budget Office.

In its cost assessment on S.50, the companion version of H.R.91, the CBO said the measure "would authorize the appropriation of whatever amounts are necessary to the Bureau of Indian Affairs (BIA) to assess and improve the sanitation and safety conditions on land held in trust by the United States for the four Columbia River Treaty tribes (the Nez Perce Tribe, the Confederated Tribes of Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs Reservation of Oregon, and the Confederated Tribes and Bands of the Yakama Nation>)."

The Senate Committee on Indian Affairs approved S.50 at its first business meeting in January. It has not yet been taken up on by the full Senate but action on the House version puts the measure a lot closer to final passage than most other Indian legislation.

H.R.91 is due to be taken up under a suspension of the rules on Monday afternoon, according to the Majority Leader's Schedule. The process is typically used for legislation that is considered non-controversial.

The Santa Ynez Band of Chumash Indians land-into-trust site, also known as Camp 4, in Santa Barbara County, California. Photo: Santa Ynez Band

Tribal homelands

• H.R.317, the Santa Ynez Band of Chumash Indians Land Affirmation Act

Another measure that failed to make it over the the finish line in the last session was a bill to protect the homelands of the Santa Ynez Band of Chumash Indians. The tribe, based in central California, has faced repeated challenges to its land-into-trust applications, most of which have been for small properties.

H.R.317, the Santa Ynez Band of Chumash Indians Land Affirmation Act, covers a much bigger property -- a 1,400-acre parcel known locally as Camp 4. A portion of land is to be used for provide housing for tribal citizens, who are currently hindered by limited options on their reservation.

“We continue to seek the opportunity to place our Camp 4 property in federal trust through legislation,” Chairman Kenneth Kahn said when H.R.317 was introduced in January. “We were successful in placing Camp 4 in federal trust through the BIA’s administrative process, and we’re confident that with the progress we’ve made over the last two years, the legislative process will be just as successful.”

The tribe, however, has seen its fortunes shift during the Trump administration. After a federal judge in February questioned the manner in which the Camp 4 application was approved in the final days of the Obama era, the new leader of the BIA quickly reaffirmed the prior decision to place the 1,400 acres in trust.

A month later, Assistant Secretary for Indian Affairs Tara Sweeney had a change of heart. On March 29, she withdrew her prior decision and said the BIA needs more time to assess whether endangered species -- the California condor and the willow flycatcher -- are impacted by the acquisition.

No timeline was given for a new decision. As a result, the tribe is stuck in limbo but passage of H.R.317 in the House would resolve the uncertainty by ensuring that the land is placed in trust.

Change of Heart: A month after re-approving a land-into-trust application for the Santa Ynez Band of Chumash Indians, the Trump administration reversed course. According to Assistant Secretary for Indian Affairs Tara Sweeney, more time is needed to review potential impacts on endangered species.

Prospects on Capitol Hill, though, remain unclear for reasons that also remain unclear. After a prior version of the bill easily cleared the Republican-controlled House during the 115th Congress, it took six more months before the Senate Committee on Indian Affairs held a hearing on it.

That's when a witness from California thanked Sen. Kamala Harris (D-California), for contributing to the slow movement on the bill. Harris, who is seeking the Democratic nomination for president, has a history of challenging tribal land-into-trust applications when she served as attorney general of California.

The Senate committee ended up approving the bill but it never came up for a vote in the full chamber even though it was sponsored by a Republican. H.R.317 is sponsored by that same Republican, Rep. Doug LaMalfa of California.

H.R.317 is due to be taken up under a suspension of the rules on Monday afternoon, according to the Majority Leader's Schedule. The process is typically used for legislation that is considered non-controversial.

Proceedings of the House can be viewed on live.house.gov or on C-SPAN.

Elsewhere on Capitol Hill

Lawmakers are getting back to work after a two-week recess and their schedule is jam-packed. Here's a look at the Indian Country happenings on Capitol Hill.

On Tuesday, April 30, the House Subcommittee on Oversight and Investigations is holding a hearing on the controversial reorganization at the Department of the Interior. According to newly-confirmed Secretary David Bernhardt and Assistant Secretary Tara Sweeney, the Bureau of Indian Affairs and the Bureau of Indian Education will be not be included in the controversial initiative but tribes still have questions. Democrats have titled the hearing "No Road Map, No Destination, No Justification: The Implementation and Impacts of the Reorganization of the Department of the Interior."

Also on Tuesday, House Subcommittee on Interior, Environment, and Related Agencies will take testimony on the Trump administration's fiscal year 2020 budget request for the Bureau of Indian Affairs, the Bureau of Indian Education and Indian trust programs at the BIA.

On Wednesday, May 1, the House Committee on Natural Resources is holding markup session. Three bills of interest are on the agenda:

• H.R.375, a bill to reaffirm the authority of the Bureau of Indian Affairs to take land into trust for all tribes, regardless of the date of federal recognition. The measure is more commonly known as a Carcieri fix because it addresses the U.S. Supreme Court decision in Carcieri v. Salazar.

• H.R.312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act. The bill ensures that the reservation of the Mashpee Wampanoag Tribe is in trust and cannot be challenged in court on the basis of the Carcieri decision.

• H.R.1146, the Arctic Cultural and Coastal Plain Protection Act. The bill bars energy development in the Arctic National Wildlife Refuge, also known as ANWR, in Alaska.

Assuming all three bills are approved during the markup, they can be sent to the full House for a vote.

Also on Wednesday, the Senate Committee on Indian Affairs holds a legislative hearing. Three bills are on the agenda:

• S.790, a bill to authorize the Bureau of Indian Affairs to approve a land-into-trust application for the Catawba Nation.

• S.279, the Tribal School Federal Insurance Parity Act. The bill provides employees of tribal grant schools with the ability to participate in federal health and life insurance programs.

• S.832, A bill to nullify the Supplemental Treaty Between the United States of American and Confederated Tribes and Bands of Indian of Middle Oregon, concluded on November 15, 1865. The supplemental treaty at issue is "fraudulent," according to members of Congress.

The hearing is the first step in the legislative process for all three bills.

On Thursday, May 2, the Senate Energy and Natural Resources Committee is holding a confirmation hearing for Daniel Jorjani to serve as Solicitor of the Department of the Interior. Jorjani has played a central role in a number of policy setbacks seen by Indian Country in the Trump era, including a unilateral decision to stop processing all land-into-trust applications in Alaska.