Tribal consultation bill hits snag on eve of ‘historic’ action in Congress
Monday, April 11, 2022
By Acee Agoyo
WASHINGTON, D.C. — A Democratic-led bill to strengthen the policy of tribal consultation has hit a snag on Capitol Hill, leaving some supporters wondering about its future.
H.R.3587, the Requirements, Expectations, and Standard Procedures for Effective Consultation with Tribes Act, was supposed to be advanced by the House Committee on Natural Resources last week. But when the notice for the markup was released, the bill was noticeably absent from the schedule.
The absence was all the more glaring because Rep. Raúl Grijalva (D-Arizona), the chairman of the legislative committee with jurisdiction over Indian issues, had previously announced April 6 as the markup for the RESPECT Act. At a press conference at the U.S. Capitol a week prior, he highlighted the “historic step” being taken in the Democratic-controlled Congress.
“This is the first time in Congressional history that a bill — a specific bill requiring tribal consultation — will come before the full committee,” Grijalva said on March 28.
“But I know this time is right,” Grijalva added. “Our country is finally starting to take meaningful steps in reckoning with its colonial past and its many crimes against Indian Country.”
Yet it appears the reckoning will have to wait. When asked to explain why the RESPECT Act disappeared from the schedule, Democratic staff on the committee pointed to a potentially divisive issue that could derail the bill’s chances in the 117th Congress.
“At the behest of the National Congress of American Indians, we are postponing the markup to discuss their concerns regarding the possibility of including Alaska Native Corporations and Native Hawaiians in the bill,” Democratic staff told Indianz.Com.
The National Congress of American Indians did not respond to a request for comment about the “concerns” attributed to the nation’s largest inter-tribal advocacy organization. But two Indian law and policy experts in Washington, D.C., confirmed the nature of the disagreement that could imperil the RESPECT Act.
According to the two experts, the concerns indeed center around the potential inclusion of Alaska Native corporations (ANCs) and Native Hawaiian organizations in the bill. Should the bill become law, federal agencies would be required to consult with these non-governmental entities in the same manner as Indian nations.
“They put ANCs in there, on parity with tribal governments,” one Indian policy expert with close ties to Capitol Hill told Indianz.Com.
H.R.3587, as introduced by Grijalva on May 28, 2021, does not mention Alaska Native corporations or Native Hawaiian organizations. They weren’t discussed for possible inclusion at a hearing on the draft version of the RESPECT Act last year and they weren’t brought up at the more recent press conference either.
But the second Indian policy expert said Grijalva planned to unveil a new version of the RESPECT Act with Alaska Native corporations and Native Hawaiian organizations on the morning of the April 6 markup. This person credited NCAI for raising concerns on the eve of the session, even if it meant delaying consideration of the otherwise historic bill.
“They are watching out for Indian Country,” the person said of NCAI, whose membership includes tribal governments from the state of Alaska.
With eight months left in the 117th Congress, time is quickly running out on Indian Country’s legislative agenda. The RESPECT Act is seen as one way to ensure that the U.S. government lives up to its trust and treaty responsibilities and upholds the nation-to-nation relationship with tribes.
“Making the tribal consultation process a law is long overdue and it would be a step in the right direction to ensure tribal nations’ sovereignty is protected and our voice is at the table,” Chairwoman Amber Torres of the Walker River Paiute Tribe said at the press conference on March 28.
A panel of tribal leadership, Indian law experts, inter-tribal organizations and supportive groups appear at the RESPECT Act conference in Washington, D.C., on March 28, 2022. Photo courtesy House Committee on Natural Resources, Democrats
A number of federal agency consultation policies include Alaska Native corporations, which were created following passage of the Alaska Native Claims Settlement Act of 1971. But tribal leaders frequently point out that these for-profit entities are not the same as tribal governments. Alaska, in fact, is home to 229 federally recognized tribes.
The distinction erupted into a major law and policy showdown during the final year of the Donald Trump administration. Almost every single tribal organization, representing nearly every single tribe in the continental U.S. and Alaska, objected to the inclusion of Alaska Native corporations in an $8 billion COVID-19 relief fund.
Tribal nations, though, found themselves on the losing end of this particular dispute even after Democratic President Joe Biden came into office. In June 2021, the U.S. Supreme Court held that the definition of “Indian tribe” utilized by Congress includes Alaska Native corporations. The Department of the Treasury subsequently distributed about $500 million in leftover COVID-19 relief funds to these for-profit entities.
A subsequent law, known as the American Rescue Plan Act, set aside another $20 billion in COVID-19 relief for tribal governments. Only this time, the definition used by Congress was tied to the Federally Recognized Indian Tribe List Act, meaning that only federally recognized Indian nations qualified for the funds.
Rep. Raúl Grijalva (D-Arizona), chairman of the House Committee on Natural Resources, discusses the RESPECT Act at a press conference in Washington, D.C., on March 28, 2022. Photo courtesy House Committee on Natural Resources, Democrats
Notably, the original version of the RESPECT Act is also tied to the Federally Recognized Indian Tribe List Act, which became law in 1994. The statute requires the Bureau of Indian Affairs to publish a list of every federally recognized tribe “annually on or before every January 30.” The list, which was most recently published in the Federal Register on January 28, does not include Alaska Native corporations.
Native Hawaiian organizations aren’t listed, either. Attempts to extend the policy of self-determination to the original sovereign government of Hawaii have repeatedly faltered in Congress.
Legal and policy disagreements aside, an entirely different development on Capitol Hill is influencing a renewed sense of bipartisanship when it comes to Indian Country’s legislative agenda. The recent passing of Rep. Don Young (R-Alaska) is leading lawmakers of both parties to find ways to pay tribute to his legacy, which included strong support for Alaska Natives and Native Hawaiians.
Before his passing at the age of 88, Young had not signed on as a co-sponsor of the RESPECT Act in the 117th Congress. He had not co-sponsored prior versions of the bill that had been introduced by Grijalva as far back as 2010 either.
But one Indian law and policy expert said Young — who was known as the Dean of the U.S. House of Representatives for being the longest serving member in the chamber — had been approached about signing onto H.R.3587. According to this person, no decision had been made before his untimely passing on March 18. His final appearance before the House Committee on Natural Resources, of which previously served as chair, was just the day prior to his death.
“The history of Alaska and Hawaii go back a long way actually, to pre-statehood,” Rep. Ed Case (D-Hawaii) said at what would have been the markup for the RESPECT Act on April 6.
Instead, the session turned into a lengthy tribute to Young, whose achievements had been celebrated by the U.S. Congress a week prior. Lawmakers, Democratic and Republican alike, shared stories of the many ways in which they collaborated with the former Congressman from Alaska on a wide range of issues, especially ones affecting Alaska Natives and Native Hawaiians in the last two states that joined the union.
“Don embraced that when he got here — only 14 years after statehood,” Case said in describing the “special relationship” between the 49th and 50th states. “He was always a friend of Hawaii.”
With the Senate Committee on Indian Affairs being led by Sen. Brian Schatz (D-Hawaii) and Sen. Lisa Murkowski (R-Alaska), the unique partnership endures when it comes to Alaska Natives and Native Hawaiians. But supporters of the RESPECT Act told Indianz.Com that they aren’t sure there’s enough time — or energy — to hash out any potential concerns about the inclusion of Alaska Native corporations and Native Hawaiian organizations into the bill.
“Not certain why they put ANCs in there to begin with,” one person said. “NCAI is going to have to settle this,” the person added, expressing fears of what might happen to other pro-tribal legislation if the issue lingers on Capitol Hill.
Rep. Raúl Grijalva: Introducing the RESPECT Act
The RESPECT Act, in its original form, is otherwise supported by tribes and tribal organizations across the country.
“We did not sign a treaty giving away our land for nothing,” said Matthew Fletcher, the director of the Indigenous Law and Policy Center at Michigan State University College of Law. “We signed treaties that ensured a continuing government-to-government relationship on an equal basis with the United States.”
“So, I strongly support – and so does history and the law — the enactment of the RESPECT Act,” Fletcher, a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians, said at the press conference on March 28.
Even non-Indian organizations, many of them with legislative agendas that line up with Democratic priorities, are supporting the bill. A letter released by the House Committee on Natural Resources was signed by 19 conservation, environmental and public lands groups, including the Alaska Wilderness League.
“H.R.3587 will rightfully guarantee that federal agencies properly consult Indian tribes in policymaking by adding important standards and requirements for government-to-government consultation, including when to initiate consultation and how to carry out consultation,” the March 29 letter reads.