Congressional Update
FY 2019 Appropriations Update
Senate Passes Savanna’s Act
Celebration of the First Native American Women Elected to Congress
Nomination of Eric Miller to the U.S. Ninth Circuit Court of Appeals
Resolutions Commemorating the 40th Anniversary of ICWA Introduced
Upcoming Hearings
SCIA Oversight Hearing on Missing and Murdered Persons in Indian Country
Administration Update
IHS Announces Director of Office of Resource Access and Partnerships
DOI Establishing BIE Committee and Notice of Public Meetings
This Week: DOI Announces Consultations on Taking Land into Trust in Alaska
and Organizing as a Tribe under the Alaska IRA
HUD Seeks Comments on Section 184 Indian Housing Loan Guarantee Regulations
Bureau of Consumer Financial Protection to Host Tribal Consultation
EPA Seeks Comments on Comprehensive Revision of the Clean Water Act’s 404(g)
Permitting Program
ED Tribal Consultation on the STEP Program
DOT Announces $300 Million for Federal Lands and Tribal Projects
HRSA Announces Rural Communities Opioid Response Program Grant
DOJ Announces Public Safety and Victim Services Grant Program
Congressional Update
appropFY 2019 Appropriations Update
On Friday, President Trump signed a continuing resolution (H.J. Res. 143) that extends the stopgap measure end date to December 21.
The sticking point is a White House request for $5 billion in funding for a border wall. Senator Schumer (D-NY) has drawn the line at $1.6 billion in wall construction funds. The Senate’s Homeland Security bill (S. 3109) contains $1.6 billion for border security while the House version (H.R. 6776) contains nearly $5 billion.
Republicans have pushed for an agreement on a seven-bill package, which includes Interior-Environment and Commerce-Justice-Science, as well as $5 billion for the wall either in one year or spread over two years. Democrats instead offered a six-bill package combined with a continuing resolution that extends the current level of spending in the Homeland Security bill until the end of the fiscal year on September 30, 2019.
Another option for Congress is to punt the decision into the next year. Outside of the Homeland Security bill, there are few outstanding issues, but one important issue is whether a policy rider to prevent the Administration from including the citizenship question on the 2020 census will be added. If negotiations collapse, a partial government shutdown would ensue.
NCAI Contact Info: Amber Ebarb, Budget and Policy Analyst, aebarb@ncai.org
SavannaSenate Passes Savanna’s Act
On December 6, the Senate passed S. 1942, Savanna’s Act, with an amendment by voice vote. The bill will now move to the House of Representatives for consideration.
Savanna’s Act, named for Savanna LaFontaine-Greywind from North Dakota, will improve tribal access to federal databases to track missing and unidentified persons. The bill was introduced by Senator Heidi Heitkamp (D-ND) on October 5, 2017. The Senate Committee on Indian Affairs held a legislative hearing on the bill on October 25, 2017, and held a business meeting and ordered the bill to be reported with a substitute amendment on November 14, 2018.
For Senator Hoeven’s press release, please click here.
For Senator Udall’s press release, please click here.
NCAI Contact Info: Virginia Davis, Senior Advisor, vdavis@ncai.org
NWCelebration of the First Native American Women Elected to Congress
Please join Indian Country in honoring the first Native American women elected to Congress, Debra Haaland (D-NM) and Sharice Davids (D-KS), at the National Museum of the American Indian on January 3, 2019, from 6:00 p.m. – 8:00 p.m.
To RSVP, please click here.
NCAI Contact Info: Jacob Schellinger, Director of Government Affairs, jschellinger@ncai.org
MillerNomination of Eric Miller to the U.S. Ninth Circuit Court of Appeals
The Senate Judiciary Committee held a hearing on the nomination of Eric Miller to serve on the Ninth Circuit Court of Appeals during the Congressional recess on October 24. It is highly unusual for a hearing to take place when the Senate is not in session, and only two senators, Senator Crapo (R-ID) and Senator Hatch (R-UT), attended the hearing. Mr. Miller was questioned for less than 10 minutes.
Mr. Miller’s nomination has been opposed by NCAI and more than 50 tribal nations and organizations. NCAI recently passed a resolution strongly opposing Miller’s nomination. NCAI and the Native American Rights Fund also sent a letter to the Senate Judiciary Committee on August 21, 2018 that examined Mr. Miller’s record on tribal issues. Mr. Miller has sided against tribal interests in a laundry list of cases and has consistently made arguments intended to diminish tribal sovereignty. He has attempted to explain his record by saying that he was simply a lawyer representing his clients and the positions taken do not necessarily reflect his personal views. However, this fails to explain why he took several anti-tribal cases on a pro bono basis, which means he agreed to work on those cases without being paid.
The Ninth Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. There are 427 federally recognized tribal nations in the Ninth Circuit, more than any other federal Court of Appeals. Because the Ninth Circuit hears more tribal cases than any other, it is a leader in the field of federal Indian law and it feeds more tribal cases into the Supreme Court than any other circuit court. A nominee like Eric Miller should be strongly opposed by tribal nations and all Native people.
The Senate Judiciary Committee scheduled a business meeting for Thursday, November 29, 2018 to vote on Mr. Miller’s nomination, but the meeting was cancelled. We urge tribal nations to continue to weigh in with their senators and the Senate Judiciary Committee to let them know that Eric Miller should not be confirmed for a lifetime seat on this important court, and that we expect individuals nominated for federal judgeships to respect and uphold tribal rights. NCAI has prepared a sample tribal resolution and a sample tribal letter of opposition for tribal nations to use in their opposition efforts. Please notify NCAI if your tribal nation sends a letter or resolution.
NCAI Contact Info: Virginia Davis, Senior Advisor, vdavis@ncai.org
ICWAResolutions Commemorating the 40th Anniversary of the Indian Child Welfare Act Introduced in Congress
On November 27, 2018, the House and Senate introduced resolutions commemorating the 40 year anniversary of the Indian Child Welfare Act (ICWA) of 1978. S. Res. 707 and H. Res. 1159 recognize the government-to-government relationship between the federal government and tribal nations, as well as the trust responsibility owed to American Indian and Alaska Native (AI/AN) children.
The resolutions highlight the tragic history behind the passage of the 1978 Act and reaffirms that ICWA “(1) adheres to principles of tribal sovereignty; (2) promotes the best interest of AI/AN children; and (3) ensures child welfare systems follow best practices and treat AI/AN children fairly”. The resolutions also stress that, while ICWA has made improvements to the child welfare system, ICWA protections are still needed today.
To view the Senate resolution, please click here.
To view the House resolution, please click here.
NCAI Contact Info: Kelbie Kennedy, Policy Counsel, kkennedy@ncai.org
Upcoming Hearings
SCIAMMSenate Committee on Indian Affairs
Oversight Hearing on “Missing and Murdered: Confronting the Silent Crisis in Indian Country.”
628 Dirksen Senate Building
December 12, 2018
2:30 p.m. EST
Administration Update
IHSIHS Announces Director of the Office of Resource Access and Partnerships
The Indian Health Services (IHS) has announced Cmdr. John Rael, an enrolled member of the Pueblo of Isleta, as the Director of the Office of Resource Access and Partnerships (ORAP). As Director of ORAP, Cmdr. Rael is responsible for providing direction and leadership in the areas of purchased and referred care, business office and third-party collections, and partnerships with other agencies and organizations. ORAP consists of the Division of Contract Care and the Division of Business Office Enhancement.
For more information, please click here.
NCAI Contact Info: Nicholas Courtney, Policy Analyst, ncourtney@ncai.org
BIEDOI Announces Establishment of BIE Standards, Assessments, and Accountability System Negotiated Rulemaking Committee
The Department of the Interior issued a notice for the establishment of a Bureau of Indian Education (BIE) Standards, Assessments, and Accountability System Negotiated Rulemaking Committee. The Committee will advise the Secretary of the Interior (Secretary) through the BIE and the Assistant Secretary for Indian Affairs on the development of regulations to fulfill the Secretary’s responsibility to define standards, assessments, and an accountability system consistent with the Elementary and Secondary Education Act (ESEA) section 1111 (20 U.S.C. 6311) for schools funded by BIE on a national, regional, or tribal basis, taking into account the unique circumstances and needs of such schools and the students they serve.
BIE has held Committee meetings in Billings (Montana), Albuquerque (New Mexico), and Arlington (Virginia). There is one confirmed date for Committee meetings as well as a webinar in the spring of 2019.
Date
Time
Location
Monday, January 14 – Thursday, January 17, 2018
TBD
Phoenix, Arizona
Webinar, Spring 2019
11:30 a.m. – 2:30 p.m. EST
Via Teleconference
1 (866) 818-9861
Participant code: 70319382
The meetings will cover the committee’s roles and protocols, existing regulations, as well as take oral comments. Meetings will be open to the public. It is imperative that tribal leaders attend to ensure diverse perspectives are represented.
Written comments can be mailed to:
Ms. Sue Bement
C/O The Office of Regulatory Affairs and Collaborative Action
1001 Indian School Road NW, Suite 312
Albuquerque, NM 87104
To submit comments by email, send comments to BIEcomments@bia.gov
For questions, call (952) 851-5427.
For more information, please click here.
NCAI Contact Info: Nicholas Courtney, Policy Analyst, ncourtney@ncai.org
DOIAKDOI Announces Consultations on Taking Land into Trust in Alaska and Organizing as a Tribe under the Alaska IRA
Tribal Consultation on Wednesday, December 12, 2018
The Department of the Interior initiated two Alaska-specific reviews, dealing with the authority of the Department to take land into trust for Alaska Native tribes, and the authority to organize as tribes under the Alaska Indian Reorganization Act (IRA). NCAI urges Alaska Natives to actively participate in these consultations and urges tribal nations in the lower 48 to strongly support Alaska Natives as well.
Land into Trust Authority
On July 2, the Department sent a letter addressing trust lands in Alaska, and opened a five-month comment period soliciting input from tribes, Alaska Native Corporations (ANCs), and the public on the Secretary’s authority to acquire trust lands in Alaska. The announcement requests comments on three legal questions and three process questions. They include:
How do you view the impact, if any, of the Alaska Native Claims Settlement Act, the Federal Land Policy and Management Act of 1976, and the Alaska National Interest Land Conservation Act on the Secretary’s ability to take land-into-trust in Alaska?
What impact, if any, do the 1994 amendments to the IRA have on the Secretary’s ability to promulgate rules specific to federally recognized tribes in Alaska?
Should Congressional intent or legislative history play a role in determining whether the Secretary should accept land into trust in Alaska?
Is 25 CFR 151 (Part 151), Land Acquisitions, an appropriate process for tribes in Alaska to request the Department take land-in-trust?
Are there challenges specific to tribes in Alaska that make the requirements of Part 151 particularly challenging to satisfy?
If the Department were to promulgate regulations governing land-into-trust acquisitions specific to federally recognized tribes in Alaska, how might those regulations differ from Part 151?
Many of the above questions presented are legal questions previously answered, and others appear to suggest there should be a different fee-to-trust process in Alaska.
Moreover, no mention is made of the well-known Akiachak litigation, which found the Alaska ban illegal. The issue of trust land acquisitions in Alaska had been previously believed to be settled in the Akiachak litigation.
Consultations will take place at the following locations, on the following dates and times:
Event
Date
Time
Location
Tribal Consultation
Wednesday, Dec. 12
10:00 a.m. – Noon
Tel: 877-716-4291
Passcode: 6919058
Alaska IRA
On July 2, the Department of the Interior (Department) sent a second letter with questions related to organization under Section 16 of the Alaska IRA. To date, approximately 80 Alaska Native federally recognized tribal nations have organized pursuant to Section 16 of the IRA. To interpret this provision as no longer applying to Alaska would severely undermine tribal self-determination in Alaska and potential powers of self-government.
The questions in the request for consultation include:
When the Alaska IRA was passed in 1936, Alaska was still a Territory. Is the Alaska IRA’s organization provision still relevant in today’s Alaska?
How should the Department define or interpret the statutory phrase, “common bond”?
How should the Department define or interpret the statutory phrase, “well-defined neighborhood, community, or rural district”?
In your view, should a group of Alaska Natives sharing a common bond of occupation have the ability to exercise sovereign governmental powers?
If your answer to number 4, above, is yes, then what should be the limits of those powers, if any?
How should the Department implement the Alaska IRA’s organization provision? Through regulations? Through formal Agency guidance? Through some other means?
Is 25 CFR 83 (Part 83), Federal Acknowledgment of American Indian tribes, an appropriate process for groups in Alaska to seek Federal acknowledgment?
Are there challenges specific to Alaska Native groups that make the requirements of Part 83 particularly challenging to satisfy?
Is there a need to create a separate process for Federal acknowledgment of Alaska groups, outside Part 83?
These questions are legal in nature and cannot be considered in a vacuum as the contextual history of tribal recognition in Alaska goes back a hundred years. Because these are legal questions, the Native American Rights Fund (NARF) is preparing a memorandum that will more fully address the questions in the context of legal memoranda developed by various Solicitors for the Department of the Interior, Congressional Acts, and judicial opinions. This memorandum, when finalized, will be available to tribal nations upon request for purposes of sending a written response to the Department of the Interior. To request more information on this memorandum, please contact NARF Attorney Heather Kendall Miller at Kendall@narf.org.
It is imperative that tribal turnout is strong at the various public listening sessions, and that tribes provide testimony that attests to the fact that tribal recognition in Alaska has long been settled as a matter of law. The scheduled sessions are the same dates, locations and times as the consultations and public meetings for land-into-trust in Alaska.
For more information on each of these sessions, please see the BIA’s regulatory review website, available here.
NCAI Contact Info: Derrick Beetso, General Counsel, dbeetso@ncai.org
HUDDTTLU.S. Department of Housing and Urban Development Seeks Comments on Draft Section 184 Indian Housing Loan Guarantee Regulations
On November 5, 2018, the U.S. Department of Housing and Urban Development (HUD) published a Dear Tribal Leader letter seeking tribal input on the regulations for the Section 184 Indian Housing Loan Guarantee program.
HUD is currently revising the regulations for the Section 184 program and seeks comments on draft Subpart B and draft Subpart C. Once HUD has drafted the complete set of proposed regulations, they will send another copy of the draft proposed rule to tribal nations for comment via a “Dear Tribal Leader letter” with a 60-day comment period. Once this tribal comment period is over and any comments received are considered, HUD will publish the proposed rule in the Federal Register for public comment.
HUD will also be conducting an in-person tribal consultation on the draft proposed rule during the National American Indian Housing Council legal symposium held December 10 — 12, 2018, in Las Vegas, Nevada.
Please email comments to 184consultation@hud.gov.
For an electronic copy of the Dear Tribal Leader letter, please click here.
NCAI Contact Info: Tyler Scribner, Policy Analyst, tscribner@ncai.org
ConsumerBureau of Consumer Financial Protection to Host Tribal Consultation on Reconsideration of Its Final Rule
Wednesday, December 19, 2018,
2:00 pm — 4:00 pm EST
The Bureau of Consumer Financial Protection (Bureau) invites tribal leaders to participate in a tribal consultation on the Bureau’s Reconsideration of its Final Rule for Payday, Vehicle Title, and Certain High-Cost Installment Loans.
To better inform the Bureau’s current rulemaking process, the Bureau is specifically interested in hearing feedback on the following issues:
What steps, if any, have you taken to date to comply with the Payday Rule?
If the Payday Rule’s current August 19, 2019 compliance date is not delayed, would you be ready to comply at that time? If you do not believe you would be ready for compliance without an extension of the compliance date, could you share the reasons why?
If you do not believe you would be ready to comply by the August 19, 2019 compliance date, what additional steps would you need to take in order to comply, and how much time do you think that would require?
Are there any market developments or recent implementation challenges that might impact the time and resources needed to come into compliance with the current Payday Rule?
The consultation will be held on Wednesday, December 19, 2018 at the Bureau of Consumer Financial Protection (1700 G Street, NW Washington, DC 20552) from 2:00 p.m. — 4:00 p.m. EST.
To participate online, please click here.
Conference number: PWXW8520554
Audience passcode: 4091812
Conference line: 1-210-839-8793, Passcode: 4091812
To view the Dear Tribal Leader letter, please click here.
NCAI Contact Info: Jacob Schellinger, Director of Government Affairs, jschellinger@ncai.org
CleanWaterEPA Seeks Comments on Comprehensive Revision of the Clean Water Act’s 404(g) Permitting Program
The Environmental Protection Agency (EPA) intends to “modernize” Section 404(g) by engaging in “the first comprehensive revision [of] the existing 404(g) regulations since 1988.” Section 404(g) of the Clean Water Act provides the authority for states and tribal nations to take over dredge and fill permitting programs. The EPA is seeking tribal input before engaging in revisions and publication in the Federal Register.
Broadly, the EPA is seeking tribal-specific comments in four areas:
Potential Impediments to Assumption – Including Options for Partial Assumption
Areas of the Regulations that Need More Clarity – Clarifying the Scope of Assumable Waters
Practical Implications – Including Calculating the Economic Costs and Benefits of the Rule
Other Potential Issues – E.G. Mitigation, Self-Issuance of Permits, and Consistency Issues
The deadline for comments is December 21, 2018. Tribal nations should email comments to 404g-rulemaking@epa.gov.
If tribal leaders have any questions or would like to meet about this proposed rulemaking effort, please contact Karen Gude at gude.karen@epa.gov or call (202) 564-0831.
Additional information about the 404(g) program may be found here.
To view the tribal consultation letter, coordination plans, and EPA’s Tribal Consultation Opportunities Tracking System (TCOTS), please click here.
NCAI Contact Info: Darren Modzelewski, Policy Counsel, dmodzelewski@ncai.org
STEPU.S. Department of Education Tribal Consultation on the Office of Indian Education’s State Tribal Education Partnership Program (STEP).
In accordance with the U.S. Department of Education’s commitment to engage in regular and meaningful consultation and collaboration with tribal nations, a tribal consultation will be conducted by the U.S. Department of Education, Office of Indian Education (OIE), Office of Elementary and Secondary Education (OESE), and the White House Initiative on American Indian and Alaska Native Education regarding the OIE State Tribal Education Partnership program.
Because fiscal year 2019 would be the first grant competition for the STEP program under the revised program authority under section 6132 of the Elementary and Secondary Education Act, as amended by the Every Student Succeeds Act, defining and clarifying definitions in the 2019 notice would qualify for an exemption to the public comment requirements that govern many competitions at the Department. However, in order to establish definitions, priorities, selection criteria, or requirements for future competitions under this statutory authority, OESE is required to undergo notice-and-comment rulemaking through the Federal Register.
The U.S. Department of Education will hold this tribal consultation at the National Museum of the American Indian on Thursday, December 13, 2018 from 1:00 p.m. to 5:00 p.m. EST.
To submit written comments, please email tribalconsultation@ed.gov.
The deadline for receiving written public comments is January 13, 2019.
For more information, please click here.
NCAI Contact Info: Nicholas Courtney, Policy Analyst, ncourtney@ncai.org
DOTU.S. Department of Transportation Announces $300 Million for Federal Lands and Tribal Projects
On October 3, the U.S. Department of Transportation’s Federal Highway Administration (FHWA) published a Notice of Funding Opportunity (NOFO) making $300 million available through its Nationally Significant Federal Lands and Tribal Projects Program (NSFLTP). Funding under this program is available for the first time to build and repair roads and bridges that serve tribal or federal lands.
The Fixing America’s Surface Transportation (FAST) Act established NSFLTP to provide financial assistance for the construction, reconstruction, or rehabilitation of transportation projects providing access to or located on federal or tribal lands. Under NSFLTP, the federal share of a project can be up to 90 percent and can be used to improve the condition of a critical transportation facility. Large-scale projects with estimated construction costs of $50 million or more are given priority consideration for selection, but the program will accept projects with estimated construction costs of at least $25 million.
Applications will be accepted on a rolling basis and evaluated quarterly, until available funding has been exhausted. The first application deadline is December 17, 2018. After that, subsequent deadlines will be 11:59 pm on the last business day of the next fiscal quarter.
To review the NOFO, please click here.
To apply, please click here.
NCAI Contact Info: Tyler Scribner, Policy Analyst, tscribner@ncai.org
HRSAHRSA Announces Rural Communities Opioid Response Program Grant
The Department of Health and Human Services’ Health Resources and Services Administration (HRSA) announced a planning grant for the Rural Communities Opioid Response Program. This $24 million grant is expected to have 120 awardees and is available to all domestic public, private, non-profit, and for-profit entities, including tribal nations and tribal organizations. The grant focuses on the prevention and treatment of high risk populations in rural communities.
The grant deadline is January 15, 2019.
For more information on eligibility and the application, please click here.
NCAI Contact Info: Lorraine Basch, Policy Associate & Special Assistant to the Executive Director, lbasch@ncai.org
DOJU.S. Department of Justice Announces Public Safety in Indian Country Grant
Last week, the Department of Justice (DOJ) announced the beginning of a grant solicitation period to improve public safety and victim services in tribal communities. This funding opportunity is available to federally recognized tribes, including Alaska Native villages and tribal consortia of two or more federally recognized tribal nations.
The application deadline is 9:00 p.m. EST on February 26, 2019.
For more information on eligibility, please click here.
For more information on the grant, please click here.
For assistance with the Coordinated Tribal Assistance Solicitation (CTAS) application process, please see the FY 2019 Application Resource Guide.
NCAI Contact Info: Virginia Davis, Senior Policy Advisor, vdavis@ncai.org
National Congress of American Indians, Embassy of Tribal Nations, 1516 P Street NW, Washington, DC 20005
