This document summarizes recent policy developments impacting American Indian and Alaska Native tribes. It notes some legislative victories, including restoration of funding for Native education and recognition of tribal authority in the Violence Against Women Act. However, it also outlines attacks, such as sequestration cuts, unfavorable court rulings challenging the Indian Child Welfare Act and tribal sovereign immunity, and increased IRS audits of tribes. It concludes by emphasizing the need for tribal leaders to continue advocating for their sovereignty and the federal trust responsibility in the face of challenges from opponents seeking to dismantle tribal programs and rights.

1. Federal American Indian
and Alaska Native Policy
–
A Pitched Battle
Alaska Federation of Natives
Annual Convention
October 24, 2013
Gregory A. Smith
Hobbs Straus Dean & Walker LLP

2. A Pitched Battle

3. Victories
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Restoration of Indian Title including Alaska
Native program (Title VII) to House Elementary
and Secondary Education Reauthorization Act
VAWA Tribal Criminal Provision
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Partially Overturns Oliphant Case
Stafford Act – FEMA Tribal Request Provision
Cuts the State out of the Process
 Greatly accelerated the delivery of Federal assistance


4. Attacks


Sequestration and Budget
Courts
ICWA – Baby Veronica
 Bay Mills Sovereign Immunity
 Carcieri/Patchak


Tax Audits

5. Robert McNamara
“Empathize with Your Enemy”

7. Grade Level of Congressional
Speeches

8. Tympanum
 In architecture “the recessed,
usually triangular space enclosed
between the horizontal and
sloping cornices of a pediment,
often decorated with sculpture”

13. Pizarro

14. “Pocahontas” - A Contemporary
of Shakespeare

19. Today America celebrates Columbus Day, when we honor
Christopher Columbus for crossing the Atlantic in 1492
and reaching the New World. On October 12, the official
anniversary, his three ships landed in the Bahamas, a
group of islands in the Atlantic. Given the rough time he
had, the guy totally deserves his own holiday. For one, it
was a rough two-month trip by ship, whereas today we can
fly it in a few hours. Then he didn't even arrive where he
wanted: he thought he'd found a shortcut around the world
to reach India, not realizing there were two whole
continents blocking the way. Then on the way back to
Spain, one of his ships, the Santa Maria, crashed on
Christmas Eve. Despite all this, Columbus made three
more round trips to the New World, and even after he died
in 1506, his body was shipped back to America to be
buried. Clearly he liked it here.

20. Wee ones: If Columbus made 3 more trips to the New World
after his 1492 voyage, how many total trips did he make?
Little kids: Columbus was arrested in 1500 as governor of
Hispaniola for his bad treatment of the natives there, and was
hauled back to Spain. But the king released him and he headed
west again 2 years later. In what year was that next trip?
Bonus: If Columbus made 4 round trips during his life,
crossing the ocean twice for each one, how many times did he
sail across the Atlantic?
Big kids: There were 40 crew members on the Santa Maria,
26 on the Pinta and 21 on the Nina. How many people is that
in total? Bonus: Columbus left Spain for his historic trip on
August 3 and arrived on October 12. How many days after
setting sail did he land? (Reminder: August has 31 days, but
September has just 30.)

24. Vts_08_1.wmv

27. No Reservations: The Case for
Dismantling the Indian Bureaucracy


“Abolish the Bureau of Indian Affairs, the
Indian Health Service and all other federal
agencies that serve Native American interests
…. Lawmakers also ought to end the practice of
formal tribal recognition.”
Carl Horowitz, National Legal and Policy
Center, February 4, 2011, townhall.com

28. Senator Paul Rand

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S.162 -- Cut Federal Spending Act of 2011 (Placed on Calendar Senate - PCS)
Mr. PAUL introduced the following bill; which was read the first time
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SEC. 7. EDUCATION.
All Department of Education programs are defunded effective on the date of enactment of this
Act, except for the Pell grant program which shall be capped at $16,256,000,000.
SEC. 9. HEALTH AND HUMAN SERVICES.
(a)
(3) INDIAN HEALTH SERVICE- Amounts made available to the Indian Health Service for
fiscal year 2011 are reduced by $650,000,000.
SEC. 11. HOUSING AND URBAN DEVELOPMENT.
(a) Defunding- Except as provided in subsection (b), all accounts and programs of the
Department of Housing and Urban Development are defunded effective on the date of
enactment of this Act.
(b) Transfer- Effective on the date of enactment of this Act, Veteran housing programs
administered by the Department of Housing and Urban Development are transferred to
Department of Veterans' Affairs.
SEC. 12. INTERIOR.
(5) REPEAL- All accounts and programs of the Bureau of Indian Affairs are defunded effective
on the date of enactment of this Act.

31. Carcieri v. Salazar




Can you take land into trust?
Was the Tribe “under Federal jurisdiction” in
1934
What does this mean?
How does this involve Alaska Natives?

32. Carcieri is a “divide and conquer”
triumph for the States
 Two Classes of Tribes Diminishes
both the Trust Responsibility and
the Govt to Govt Relationship


33. Carcieri was about housing

35. Congressman Cole (R-OK)
12.08.2010.Cole House Debate.wmv

37. Sovereignty and the Constitution
Vts_02_1.wmv

38. Violence Against Women Act


Greatest lobbying triumph for Indian Country in
decades
Tremendous resistance . . . On allegedly
constitutional grounds: Senator Kyl: "by
subjecting individuals to the criminal jurisdiction
of a government from which they are excluded
on account of race," the tribal jurisdiction
provision "would quite plainly violate the
Constitution’s guarantees of Equal Protection
and Due Process."

39. Sen. Kyl’s View is part of a
broader attack on the
constitutionality of federal Indian
laws

40. Senate Indian Affairs Committee
“No” Votes – A Different View of
Tribal Sovereignty
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Senator John Barrasso
Senator John McCain
Senator John Hoeven
Senator Deb Fischer

41. U.S. Supreme Court

42. Adoptive Couple v. Baby Girl



Challenge to Indian Child Welfare Act (ICWA)
Constitutional Arguments
Same lawyer as in KG Urban case

43. Veronica

44. Bay Mills Case


To be Argued December 2, 2013
Scope of Tribal Sovereign Immunity at Issue

45. U.S. v. Lara, April 19, 2004

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Justice Thomas: “… the time has come to reexamine the
premises and logic of our tribal sovereignty cases … In my view,
the tribes either are or are not separate sovereigns, and our
federal Indian law cases untenably hold both positions
simultaneously.”
“I do not necessarily agree that the tribes have any residual
inherent sovereignty…”
“I cannot agree that the Indian Commerce Clause provides
Congress with plenary power to legislate in the field of Indian
affairs . . . And I would be willing to revisit the question.”

47. How do you eat an elephant?

Enemies of Indian Country consider the
elephant to be:
Tribal Sovereignty
 Federal Trust Responsibility to Tribes
 Land into Trust Process


48. Federal Budget - Hard Facts


At least one-third of all Federal spending is
funded through borrowing.
Federal funding is a major manifestation of the
trust responsibility.

51. Federal Revenues Will Be
Inadequate In Coming Decades
Source: CBPP projections based on CBO data
51

52. If Bush Tax Cuts had Expired

57. What About the Indian Health
Service?

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Should be no sequestration in FY 2014,
But will that make a difference?

58. Tribal Leaders Defy “Progress of
Civilization” Tympanum

59. Gregory A. Smith
Hobbs Straus Dean & Walker
Washington, DC
Tel: 202-822-8282
Email: gsmith@hobbsstraus.com