Rep. Raúl Grijalva serves as the top Democrat on the House Committee on Natural Resources, the legislative panel with jurisdiction over Indian issues. Photo: Gage Skidmore

Land-into-trust fix added to controversial federal recognition bill



A controversial bill to strip the Bureau of Indian Affairs of its federal recognition powers has just gotten more messy.

Indian Country has already spoken out against H.R.3744, the Tribal Recognition Act. Tribes and their Democratic supporters in Congress are worried that placing all federal recognition decisions in the hands of Congress will further politicize the cumbersome process.

"The importance of federal recognition cannot be overstated and that is why simply leaving an act of Congress as the only path forward for tribal recognition is dangerous and misguided, " Rep. Raúl Grijalva (D-Arizona), the top Democrat on the House Committee on Natural Resources, said at a markup session on Wednesday morning.

But even though most Democrats voted to reject H.R.3744 at the session, Grijalva managed to sneak in an amendment. The provision states that all land placed in trust prior to February 24, 2009, is "hereby reaffirmed as trust land."

That date, of course, is infamous in Indian Country. On February 24, 2009, the U.S. Supreme Court cast doubt on land-into-trust decisions for tribes whose federal recognition only became final more recently.

Indianz.Com on SoundCloud: House Committee on Natural Resources Markup -- June 13, 2018

The ruling, known as Carcieri v. Salazar, has led to protracted litigation. It took the Cowlitz Tribe, for example, almost two decades to secure a homeland for its people in Washington state, after going without one for more than 160 years.

In Massachusetts, a similar delay is unfolding. The Mashpee Wampanoag Tribe has been seeking to establish a homeland for more than a decade but a Carcieri challenge has derailed the process.

"Many tribes now face frivolous lawsuits related to the Carcieri decision on land that they have had in trust for years, sometimes decades," said Grijalva. A closely-watched lawsuit in California, for example, attempted to undermine a trust acquisition for the Big Lagoon Rancheria that was made in the 1990s.

Grijalva's amendment, though, is only a partial fix to Carcieri. It merely addresses land acquisitions made prior to the decision, an approach that was recently affirmed by the Supreme Court in a different case known as Patchak v. Zinke.

Republicans did not offer any objections to the amendment, which was approved by a voice vote at the markup. That's a big shift from the last session of Congress, when Grijalva's attempt to add a partial fix to the Tribal Recognition Act was defeated in a party-line vote.

And just a few months prior to that, Republicans -- including the sponsor of the Tribal Recognition Act -- forced Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation, to remove his partial Carcieri fix from a federal funding bill when they said he was trying to go around their backs.

Rep. Rob Bishop (R-Utah) serves as chairman of the House Committee on Natural Resources, the legislative panel with jurisdiction over Indian issues. Photo: American Federation of Government Employees

But this time around, Rep. Rob Bishop (R-Utah) was singing a different tune. Though he expressed concerns about bringing a "gotcha" amendment into H.R.3744, he let it pass.

"It's not a bad amendment," said Bishop, who serves as chairman of the committee. "I am willing to accept it, even if the Democrats are still not willing to go along and help us pass the underlying bill."

Democrats are in fact not willing to help Bishop with his agenda. During the markup, Grijalva pointed out that the Republican majority in the House "has the votes to pass" the Tribal Recognition Act without his party's support.

But Grijalva added: "However, who knows what the Senate or the White House may do with it."

And after the session concluded, Grijalva sent out press release that left no doubt about his party's views. It described the Tribal Recognition Act as a "Republican Shakedown Disguised as Legislation."


Blood quantum in Oklahoma

Despite the tension on H.R.3744, the committee acted in bipartisan fashion on two other Indian bills. The first was H.R.2606, also known as the Stigler Act Amendments.

H.R.2606 addresses a blood quantum issue affecting citizens of the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation, the Muscogee (Creek) Nation and the Seminole Nation. Under the Stigler Act of 1947, citizens of these five tribes must be of at least one-half Indian blood in order for their allotments to be held in "restricted fee" status.

"This law has led to a devastating loss of land and is contrary to modern federal policy toward Indian tribes to restore tribal homelands," Chief Bill John Baker of the Cherokee Nation said during testimony on the bill last October. "It is time to amend this termination era law that originates from a time when federal policy was designed to dramatically diminish tribal homelands."

Though the committee approved H.R.2606 by a voice vote, prospects in the House are tainted by history. A prior version of the bill was on the cusp of passage more than a decade ago until energy interests in Oklahoma derailed it by saying it could make development on Indian lands more complicated.

The Republican George W. Bush administration supported the bill, as did some Republicans in Congress. But the mere prospect of upsetting a powerful industry was enough to put it to bed at the time.

House Committee on Natural Resources: Full Committee Markup -- June 13, 2018

Indian health care

In a second action, the committee approved H.R.5874, the Restoring Accountability in the Indian Health Service Act (RAISE Act), by a voice vote. The bill makes a number of reforms at the Indian Health Service in hopes of making the troubled agency more accountable to tribes and their citizens.

Lawmakers have not taken testimony on H.R.5874 during the 115th Congress but they did hold a hearing on a prior version during the last session. A number of tribes, mainly those in the Great Plains, where quality of care issues have gone unresolved for years, have expressed support for it.

"The ongoing events in the Great Plains area hospitals and the Gallup, New Mexico, hospital have shone a bright light on the deficiencies in the system," said Rep. Grijalva. "The fact is that we cannot provide competent, quality health care to Native Americans and Alaska Natives when we allow inadequate facilities with substandard levels of care to exist."

Four hospitals in the Great Plains, a region that includes Nebraska and South Dakota, have come under fire for substandard levels of care that have put patients lives' in danger. One of those hospitals, the one that serves the Omaha Tribe and the Winnebago Tribe, even had its federal certification revoked, a situation that remains uncorrected after nearly three years.

The Winnebago Tribe has since entered into negotiations with the IHS to take over management of the Omaha-Winnebago Hospital, which is located on its reservation in northeastern Nebraska. Amid objections from the Omaha Tribe, the goal is to complete the transfer by July 1.

"We’re actively working with both tribes to discuss tribal assumption of the hospital by this summer," Michael Weahkee, the acting director of the IHS, told Congress last month when asked about the self-governance effort.

In New Mexico, the Gallup Indian Medical Center, which primarily serves the Navajo Nation also has been questioned. The facility is 59 years old and suffers from a high staff vacancy rate, Sen. Tom Udall (D-New Mexico) said on Wednesday.

"Recent deficiencies at GIMC, uncovered by the Centers for Medicare and Medicaid Services, mean the facility is at risk of losing its accreditation," Udall said at a hearing of the Senate Committee on Indian Affairs, of which he serves as vice chairman.

The Centers for Medicare and Medicaid Services was the federal agency that terminated the Omaha-Winnebago hospital's certification back in July 2015. As a result, the facility is unable to bill Medicare or Medicaid for care, resulting in a loss of revenues in an already underfunded Indian health system.


With progress moving slowly, tribal leaders from the Great Plains are embracing the RAISE Act. H.R.5874 is sponsored by Rep. Kristi Noem (R-South Dakota), who is vacating her seat in Congress to run for governor of South Dakota.

“Her bill, the Restoring Accountability in the Indian Health Service Act, is a great step toward providing much-needed accountability in the IHS and improving the quality of health care for our people and Native people across the country," President William Kindle of the Rosebud Sioux Tribe said in a press release from Noem's office.

The bill includes provisions aimed at strengthening tribal consultation, improving recruitment and retention policies and increasing accountability regarding financial management at the IHS. It also seeks to give the agency more flexibility to address employees who may not be performing as well as anticipated. Tribes in the Great Plains have complained that their region serves as the "dumping ground" for bad actors in the system.

House Committee on Natural Resources Notice:
Full Committee Markup (June 13, 2018)

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