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The Rise of Tribes and the Fall of Federal Indian Law
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GOP votes in House beat challenges to trust fund rider
Friday, October 31, 2003

The House narrowly approved the Department of Interior's $20 billion spending bill on Thursday over objections to a provision that limits a court-ordered accounting of the Indian trust.

Last evening, the chamber rejected two challenges to the package. Indian Country advocates fought to send the bill back to a conference committee for further work, and when that failed, to reject it entirely.

The roll call against final passage of H.R.2691 underscored the influence of the Congressional Native American Caucus, a bipartisan group of 111awmakers.(*) Lobbying efforts by the members and staff of the caucus contributed to the 216-205 vote, a 51 percent to 49 percent split in the Republican-controlled House.

But the Republican-Democrat alliance was fractured when Rep. Richard Pombo (R-Calif.), chairman of the House Resources Committee, withdrew support for the effort to send the bill back to the conference committee. His backing was needed to bring other Republicans on board.

Pombo still voted against passage of the bill even though it contained wildfire funds for his state. But Indian advocates considered the motion to recommit extremely crucial because they knew they would lose some Democrat support on final passage.

On the other hand, they knew almost all Democrats supported the recommit. With the help of House Democratic Leader Nancy Pelosi of California, 92 percent of Democrats voted "yes" on the motion. But only seven Republicans did.

Congressional aides and lobbyists outside of Congress said Pombo initially supported the motion to recommit. A letter distributed on Wednesday within the House, in fact, indicated that he and other prominent Indian Country supporters -- including Reps. J.D. Hayworth (R-Ariz.) and Dale Kildee (D-Mich), the co-chairs of the Native American Caucus -- would fight to send the bill back to the conference committee.

His stance changed later in the day after he met with House Majority Leader Tom DeLay, Republican of Texas. Pombo's staff confirmed the meeting but downplayed suggestions that he was pressured to change his mind.

DeLay, known for his strong-arm tactics, told Pombo "Do what you gotta do," a Pombo aide said. DeLay staff did not return a request for comment.

Hayworth was said to be pressured by the Republican leadership as well. But he bucked his party and voted not only to send the bill back to the conference committee but against final passage even though it contains fire money for his state. Rep. Rick Renzi (R-Ariz.), a newer friend Indian Country, also voted against final passage but did not support the motion to recommit.

The approval of the bill brought criticism from Elouise Cobell, the lead plaintiff in the lawsuit that has secured the rights of 500,000 American Indians throughout the country. In a statement, she said the Bush administration was behind the rider to overturn a recent court victory.

"What this vote shows is the length that the Interior Secretary and the Bush administration will go to in their efforts to deny Indians the accounting for funds that belong to Indians - not the federal government," she said. Department officials have denied knowledge of being involved.

The plaintiffs, however, are confident the measure will be overturned when challenged in court. They will assert it violates the separation of powers clause in the U.S. Constitution due to legislative interference with the judicial branch.

The provision purports to delay, by one year, the accounting of at least $13 billion in funds collected on Indian lands since 1887. It also purports to dictate how the courts should interpret the 1994 American Indian Trust Reform Act, which calls for an accounting of "all funds" within the trust.

"This is, simply put, appalling," said Rep. Nick Rahall (D-W.Va.), ranking member of the House Resources Committee, on the floor yesterday. "It is an affront to the American system of government, including to our judiciary, and undermines the longstanding trust responsibility we have had for Indian nations and individuals."

On September 25, U.S. District Judge Royce Lamberth affirmed that the Department of Interior has a trust responsibility to account for "all funds." He rejected several limits the Bush administration sought to impose on its duties. Hayworth and Kildee, in an October 17 letter, called those restrictions arbitrary.

Lamberth ordered the government to complete the accounting by 2006 for most accounts and by 2007 for the rest. The rider would upset the time schedule while seeking to to shield Interior from abiding by the court order.

The one-year delay gives the plaintiffs, Interior and Congress time to resolve the case, Sen. Ben Nighthorse Campbell (R-Colo.) said at a Senate hearing on Wednesday. Campbell sat on the conference committee that accepted the rider, but said he was not happy with the way it happened.

The Senate has yet to take up the Interior bill.

*Ed. Note: The Congressional Native American Caucus currently has 111 members, not 96 as previously stated.

Roll Call:
On Motion to Recommit the Conference Report | On Agreeing to the Conference Report

Conference Committee Report:
House Report. 108-330 | PDF Version

DOI Budget Bills:
H.R.2691 | H.Rept.108-195 | S.1391 | S.Rept.108-89

Relevant Bills:
Campbell: Indian Money Account Claim Satisfaction Act of 2003 (S.1770) | Daschle: Indian Trust Payment Equity Act of 2003 (S.1540)

Congressional Native American Caucus Letter:
J.D. Hayworth/Dale Kildee (October 17, 2003)

Court Decisions:
Historical Accounting | Fixing the System | Structural Injunction

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust

Related Stories:
Battle brews in House over DOI budget bill (10/30)
Cobell rallies support for trust fund case (10/28)
DOI bill halts Indian trust fund case (10/24)
Bill targets Indian trust fund suit (10/22)
House chairman supports self-governance rider (10/14)
Self-governance tribes fear impact of reorganization (10/09)
Lamberth lays out future of Indian trust reform (09/26)
Court report finds undervaluation of Navajo lands (08/21)
Administration eyes consolidation of Indian appraisals (08/15)
Tally for private attorney fees in Cobell case rises (07/24)
Congress hacks Bush's accounting funds (7/16)
Swimmer partly right on trust fund rider (7/14)
Bush official balks at large settlement for Cobell (7/10)
On trust, lawmakers take Bush officials at face value (06/25)
Private attorneys reap benefits on Cobell case (06/24)
Norton offered settlement funds for IIM trust (6/20)
Lamberth criticizes interference with trust fund case (05/22)
Bush administration turns to Congress on trust (04/04)


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