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Budget Gives; Congress Still Threatens

By Charles Flowers

WASHINGTON, D.C. - President Bill Clinton released a budget calling for nearly $2 billion to be spent in Indian Country in the next fiscal year - an increase of $155 million.

The news of this proposal provided one of the highlights of the United South and Eastern Tribes (USET) conference held a subway ride away from the Capitol, Feb. 1-5.

"The budget represents the wishes of the tribal leaders across American for the needs of their people," said Kevin Gover, a Pawnee who heads the Bureau of Indian Affairs. "It is a positive step toward preserving and protecting the needs of the 7th generation of American Indian people since the reservation system began."

Clinton aide Lynn Cutler, noting that her boss was the first President since Lyndon Johnson to reference Indian Country in his State of the Union speech, said: "This government has an unprecedented commitment to tribal sovereignty. If we get all of this (the proposed budget items) it will be a miracle."

The budget includes increases for Indian schools, law enforcement, and an eight percent increase for the Indian Health Service to expand health care to the 1.4 million Native Americans it serves. Gover, whose official title is Assistant Secretary of the Interior, said the BIA is also committed to resolving Indian Trust Fund Balances. Recommendations for settling disputed accounts have already been sent to Congress.

Besides re-building Indian schools, the new budget would allow 1,000 new teachers to be hired across Indian Country. Also in Clinton's proposed budget is $20 million earmarked for law enforcement needs on Indian reservations.

Despite the jolly mood over the proposed $1.9 billion budget, fears still dogged the leaders of 23 USET member tribes about how to head off a hostile Congress.

The 106th Congress promises more struggles over gaming, taxation, and "means testing" to determine who should receive BIA funds. Also, the new millennium brings a year 2000 Census, which means more Indians will probably be miscounted.

Karen Funk, a legislative affairs specialist with Hobbs, Straus, Dean & Walker - the D.C. based law firm which monitors Congress - reported that American Indians may have been undercounted by as much as 13 percent in the last Census. The total American Indian population is now estimated at 2.3 million - up by 300,000 from the last official count.

Legal experts cautioned that while tribes scored some victories over Congressional efforts to erode sovereignty, the same issues will doubtless surface again this year, now that lawmakers have finished the impeachment trial of President Clinton.

One sign of increased action was the defeat of House Ways and Means Committee chair Bill Archer's (R-TX) amendment to tax Indian tribes' profits 35 percent. A bi-partisan Native American caucus helped defeat it in committee.

"I told Archer if you're going to tax the Indian tribes on gaming, then you'd better tax the Michigan Lottery," said Rep. Dale Kildee (D-MI), who heads the caucus. He said it was rare to "roll" the chairman of a committee, and it required the help of J.D. Hayworth (R-AZ) who crossed party lines to vote down the Archer Amendment.

This year's agenda promises more struggles.

The 'Seminole Fix'

First up: the so-called "Seminole Fix" - an expression coined for the still-to-be-found answer to the impasse between the Seminole Tribe and the State of Florida over gaming. The U.S. Supreme Court made it clear in its decision in the Seminole case that tribes cannot sue states. But, what if Congressional opponents of the Indian Gaming Regulatory Act (IGRA) seek another moratorium handcuffing Interior Secretary Bruce Babbitt from issuing rules that would permit the Seminoles and Miccosukees to legally engage in Class III gaming?

Two possibilities are the status quo - the two Florida tribes continue, and expand, gaming operations without clear federal authority - or a minor miracle: newly sworn-in Gov. Jeb Bush signs the compact agreement on his desk in Tallahassee.

"We're going to encourage the Secretary (Babbitt) to issue new rules," Gover said. That would likely trigger the same response from U.S. Sens. Harry Reid (D-NV) and Mike Enzi (R-WY), who caused the stalemate last year. The fate of gaming compacts between Indian tribes and several states hangs in the "Seminole Fix."

Since the Supreme Court barred the Seminole Tribe from compelling the State of Florida to compact, the Tribe's best hope to secure gaming into the future may lie in Tallahassee with Bush. Meanwhile, the stalemate continues, allowing both Florida tribes to continue the same kind of gaming in which they are currently engaged.

"The political reality is that if we in Indian Country don't come up with a solution, then I strongly fear that Sen. (Slade) Gorton and others will make the decision for us," said Marie Howard, House minority counsel.

A key to the approach Congress takes on gaming-related bills this session is a report due in June from the National Gambling Impact Study Group. The group has been looking into Indian gaming, along with other forms of state-sanctioned gambling, for two years. It has conducted several public hearings, although none in the Eastern United States. Some fear it may have other biases. It is chaired by Kay Cole James, the dean of Regent University in Virginia.

"In spite of tribal successes, the study commission has pre-determined biases," said Jacob Coin, a Hopi who heads the National Indian Gaming Association. At Coin's request, the USET board issued a directive to member tribes to supply the study group with "accurate information regarding Indian nations and to dispel the misinformation that is being disseminated regarding tribal gaming activities."

Outgoing National Indian Gaming Commission associate director Phil Hogen identified other areas of concern Indian tribes may need to address as the impact study group finalizes its report.

Hogen said the study group believes there is a strong difference in the amount of regulation on Indian reservations, as compared to Las Vegas and Atlantic City casinos, and that tribes should consider a "reasonable amount of oversight." He also said the group was "touched by individual stories," positive and negative, on the impacts of gaming.

In that regard, Coin noted that a record number of tribal youths are enrolled in universities as a direct result of gaming. He also claimed that Indian gaming "is the most heavily regulated sector in the United States."

Seminoles In Attendance

Seminoles in attendance at the USET conference included President Mitchell Cypress, General Counsel Jim Shore, Governor's Council Liaison Stephen Bowers, Housing Director Joel Frank, Seminole Broadcasting Director Danny Jumper, Ah-Tah-Thi-Ki Museum Director Billy L. Cypress, and President Cypress' assistant, Sally Tommie.

Seminole youth Seth Billie and Suriya Youngblood carried the Seminole colors into the USET meeting. They, along with a group of Seminole children participated in the Close-Up program, and made a presentation to the assembled tribal leaders.

A contingent from the Seminole Cattle Program at Big Cypress, including Joe Frank and Paul and Richard Bowers, stood out among the blue suits with their denim pants and broad-brimmed Stetson hats. They took home one of the best rewards, when the U.S. Department of Agriculture paid $700,000 to the program for natural resource protection.

The group stood in mostly respectful silence as two representatives of the Internal Revenue Service attempted to clarify IRS re-structuring plans to better "serve" Indian Country.

Ray Cook, who identified himself as a St. Regis Mohawk, seemed to represent the feelings of others when he said; "I feel like a hobo jumping on a fast-moving train. . .I sure wish I had the brakeman's handle on this."

In a final move, the USET board passed a resolution asking the IRS to consult with member tribes before implementing any new changes or policies. - Charles Flowers is a freelance writer who lives in Fort Lauderdale.

Tracking Legislation Affecting Indian Tribes

Here is a review of key legislation affecting American Indian Tribes which arose in the last (105th) Congress, and which may re-appear in some form in the 106th Congress:

The Indian Gaming Regulatory Improvement Act of 1998 (S. 1870). The lack of a quorum when this bill was introduced by Sen. Ben Nighthorse Campbell (R-CO) to the Senate Committee on Indian Affairs, prevented it from being marked-up.

The bill is designed to solve some of the problems of the existing Indian Gaming Regulatory Act (IGRA), including the lack of an effective remedy in cases like the Seminole Tribe of Florida's, which was denied the opportunity to sue the State of Florida by the U.S. Supreme Court. The existing IGRA calls for the Interior Secretary to arbitrate when states and Indian Tribes reach an impasse.

The bill would also require a minimum federal standard of all Indian gaming operations, and the National Indian Gaming Commission would have authority to take over regulation of Indian gaming facilities that do not meet those standards. A "trust fund" would be established to receive the substantial fees the NIGC is authorized to assess on Class II and Class III gaming.

Sen. Campbell is expected to introduce a modified form of the bill in this Congress.

Internet Gambling. Although Congress debated legislation to prohibit gambling over the Internet, including a Senate Amendment to the Commerce-State-Justice Appropriations bill (S. 2260), no such legislation was enacted.

During the House consideration of the FY 199 appropriations bill, Rep. Stearns withdrew his amendment which would have prohibited Internet gambling in return for a hearing on the Internet gambling prohibition bill (H.R. 4350) which he introduced.

Tribal Sovereign Immunity. None of the several challenges to Tribal sovereign immunity moved beyond the committee level.

Sen. Slade Gorton (R-WA) sponsored the American Indian Equal Justice Act (S. 1691), a bill which seeks to remove a Tribe's sovereign immunity from suit. Other provisions would interject federal and state courts into tribal business and governmental affairs.

Among the provisions, the bill would authorize suits by states to require Tribes to collect and remit state excise, use, or sales tax on sales to non-Tribal members. It would also grant federal courts jurisdiction in tort and contract claims and civil actions arising under federal law against a Tribe, permit state courts to hear civil suits against a Tribe, and provide federal court jurisdiction to enforce the Indian Civil Rights Act.

In a partial response, Sen. Campbell sponsored the Indian Tribal Conflict Resolution, Tort Claim, and Risk Management Act (S. 2097). Provisions in this bill would provide a process for resolving conflicts between Tribes and states, and a remedy for tort claims against Tribal governments or agents acting on behalf of a Tribe.

A modified version of S. 2097, focused only on a study of the liability insurance available to Indian Tribes, was enacted as part of the FY 1999 Omnibus Consolidated And Emergency Supplemental Appropriations Act (P.L. 105-277).

The Istook Tax Collection Agreements Bill (H.R. 1168), would restrict land being taken into trust, by compelling a tax agreement. The bill would require that, before any lands are taken into trust for a Tribe or individual Indian, the Tribe or individual Indian must enter into agreement with the state and local government to provide for the payment of state and local sales and excise taxes on non-member use of retail businesses on the land taken in trust, and provide for the collection of those taxes.

Although Rep. Istook (R-OK) did not offer this amendment - which he has introduced in some form since 1997 - to the FY 1999 Interior Appropriations bill, he did testify on this issue at one of the Senate Indian Affairs Committee's hearings on Tribal sovereign immunity.

Means Testing. In the last Congress, there were several proposals to impose so-called "means testing" to determine a Tribe's eligibility for federal BIA funds. A provision in the FY 1999 Interior Appropriations bill requires a study of the redistribution of BIA Tribal Allocation Priority (TIP funds).

Miccosukee Reserved Area In Everglades National Park (P.L. 105-313). On Oct. 30, 1998, President Bill Clinton signed into public law the Miccosukee Reserved Area Act (H.R. 3055). The act terminated the federally issued Special Use Permit which authorized the Miccosukee Tribe to use certain lands within the national park. As previously reported in the Tribune, this act effectively doubled the size of the Miccosukee reservation, and designated the new area for the exclusive use and occupancy of the Tribe.

The USET board of directors passed several resolutions dealing with these and other issues, including:

A resolution opposing the Istook Amendment, saying that, if enacted "it would impair, if not completely thwart, the ability of Indian nations to place lands in trust by effectively giving states veto power over land into trust applications."

A resolution encouraging all member tribes to communicate their views to the National Gambling Impact Study Commission, which is readying a report to Congress.

A resolution opposing the Archer Amendment, previously defeated in the House Ways and Means Committee, that would tax Indian tribes.

A resolution to oppose all legislative proposals, including Gorton's S. 1691, that, in the board's words "unlawfully seek to diminish or curtail the inherent sovereign rights of Indian nations and tribal governments.

A resolution supporting the Mashantucket Pequot Tribal Nation in its effort to transfer 165 acres into trust. The Nation was denied by a Federal District Court decision, Connecticut v. Babbitt, from transferring the land approved for trust status by Secretary of Interior Bruce Babbitt.

A resolution specifically opposing Internal Revenue Service restructuring, if the new policies "undermine the sovereignty of Indian nations or their government to government relationship with the United States."

The board asks that the IRS "consult with USET and its member tribes before implementing structural changes or promulgating policies concerning Indian nations." - List compiled by Charles Flowers, with help from Turia Enloe, United South and Eastern Tribes, and Hobbs Straus Dean & Walker Law Firm in Washington, D.C.

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