Order Code RS22056
Updated June 5, 2006
CRS Report for Congress
Received through the CRS Web
Native American Issues
in the 109th Congress
Roger Walke
Specialist in American National Government
Domestic Social Policy Division
Summary
Native American issues before Congress are numerous and diverse, covering such
areas as federal recognition of tribes, trust land acquisition, gambling regulation,
education, jails, economic development, welfare reform, homeland security, tribal
jurisdiction, highway construction, taxation, and many more. This report focuses on
four Native American issues currently of great salience before Congress: health care,
energy, trust fund management reform, and Native Hawaiian recognition. This report
will be updated as developments warrant.
Thus far, more than 500 bills have been introduced in the 109th Congress that apply,
in whole or in part, specifically to Indians,1 federal Indian programs, or Native Hawaiians.
Among the major Native American policy issues of concern to the 109th Congress are:
! Indian health care,
! Indian energy,
! Indian trust fund management reform, and
! Native Hawaiian recognition.
Each of these issues is briefly discussed in this report.
Indian Health Care
Indian Health Care Improvement Act. Congress has for more than five years
been wrestling with the reauthorization of the Indian Health Care Improvement Act
(IHCIA; P.L. 94-437, as amended). Federal responsibility for Indian health care is met
primarily through the Indian Health Service (IHS) in the Department of Health and
Human Services (HHS). While IHS’s permanent authorizing legislation, the Snyder Act
of 1921, is very broad, the IHCIA authorizes a great many specific IHS programs,
1 In this report, the term “Indian†means American Indians and Alaska Natives (the latter term
includes the American Indians, Eskimos (Inuit and Yupik), and Aleuts of Alaska); the term
“Native American†means Indians and Native Hawaiians.
Congressional Research Service ˜ The Library of Congress
CRS-2
including health professional recruitment and retention, mental health services, urban
Indian health services, construction and repair of health facilities, various special IHS
funds, and IHS reimbursement by Medicare, Medicaid, and other federal and private
health insurance programs. Authorizations of appropriations for IHCIA programs expired
at the end of FY2001, but Congress continues to appropriate funds for the programs.
Leading Indian health proponents in and out of Congress suggested major changes
in IHCIA. A number of significant changes have not been acceptable to HHS or other
agencies, however, and ongoing negotiations have produced a succession of IHCIA
reauthorization bills through the 106th-109th Congresses. The first IHCIA reauthorization
bill introduced in this Congress, S. 1057, was referred to the Senate Indian Affairs
Committee and reported on March 16, 2006 (S.Rept. 109-222). A House bill (H.R.
5312), very similar to S. 1057 as reported, was introduced on May 9, 2006. For a detailed
discussion of these bills and Indian health issues, see CRS Report RL33022, Indian
Health Service: Health Care Delivery, Status, Funding, and Legislative Issues.
Indian Energy Issues
Energy Development. The Energy Policy Act of 2005 (P.L. 109-58) included a
provision that allows tribes to enter into agreements for energy development without
obtaining prior approval from the Interior Secretary. (For a general discussion of the act,
see CRS Report RL33302, Energy Policy Act of 2005: Summary and Analysis of Enacted
Provisions.) Tribes first have to create a Tribal Energy Resource Agreement (TERA) to
govern such business agreements, and the TERA must be approved by the Interior
Secretary under new federal regulations required by the act. The BIA conducted
preliminary consultations on these federal regulations in January 2006.
ANWR Exploration. Within the Arctic National Wildlife Refuge (ANWR) are
significant oil and gas prospects in certain areas of ANWR’s coastal plain that are
currently protected by federal law from exploration or development. These areas include
both federal lands and lands whose surface and subsurface interests are owned by two
Alaska Native village and regional corporations. The opening of ANWR to oil and gas
exploration and development has long been controversial. Proponents of development
argue that the oil and gas are needed and can be developed with minimal ecological
damage; opponents dispute both those points. The two Native corporations (and the local
Native village) favor oil and gas development, but several Alaska Native villages south
of ANWR oppose development, arguing that it will disrupt the ANWR calving grounds
of the caribou herd on which the villages depend for food. Provisions to develop ANWR
are in the Senate (but not House) FY2007 budget resolution and in other freestanding
bills, such as H.R. 5429, which passed the House on May 26, 2006. For more detail, see
CRS Issue Brief IB10136, Arctic National Wildlife Refuge (ANWR): Controversies for the
109th Congress.)
Indian Trust Fund Management Reform
Congress faces a possibly multi-billion-dollar problem stemming from Indian trust
funds. The federal government’s management of Indian trust funds and lands has led to
financial claims against the United States by Indian individuals and tribes. The Indian
individual claimants alone suggest they are owed as much as $176 billion. Besides
CRS-3
lawsuits, the issue has also led to the controversial reorganization of two agencies, the
Bureau of Indian Affairs (BIA) and the Office of Special Trustee for American Indians
(OST) within DOI.
The BIA has long managed funds, lands, and related physical assets held in trust for
Indian tribes and individuals. Trust lands total about 56 million acres (almost 46 million
acres for tribes and 10 million acres for individuals). The funds’ asset value recently
totaled about $3.3 billion, of which about $2.9 billion was in about 1,400 tribal accounts
and $400 million was in more than 260,000 Individual Indian Money (IIM) accounts. The
Treasury Department houses the accounts, including making payments to beneficiaries.
Historically, the BIA has been frequently criticized for its management of trust lands and
funds. Investigations and audits in the 1980s and after showed that, among other
problems, the BIA could not document the asset values of all trust fund accounts and
could not link all trust lands to their owners and accounts. Perceiving mismanagement
and a violation of the federal trust responsibility, Congress enacted the American Indian
Trust Fund Management Reform Act of 1994 to reform the management of Indian trust
funds and assets; the act directed the Secretary of the Interior to account for trust fund
balances and created the OST to oversee trust management reforms. Two years later,
based on the 1994 act and general trust law, IIM account holders filed a class action suit
in the federal district court for the District of Columbia against the various U.S. officials,
demanding an accounting of their funds and correction of fund mismanagement (Cobell
v. Norton, Civil No. 96-1285, D.D.C.). At least 25 more tribal law suits have been filed,
covering specific tribes’ funds. These events have led to the current reorganization of the
BIA and OST and to congressional consideration of a settlement of IIM and tribal claims
arising from trust fund and lands mismanagement.
Claims and Settlement.2 In the first of two stages of the Cobell case, the district
court in 1999 found that DOI and Treasury had breached their trust duties regarding (1)
the document retention and data gathering necessary for an accounting and (2) the
business systems and staffing to fix trust management. The court ordered DOI and
Treasury to bring trust management up to current trust standards. The final stage of the
lawsuit will determine the amount of money that ought to be in the IIM plaintiffs’
accounts. In an intervening stage, the district court decided what historical accounting
method should be used to determine the amount owed the plaintiffs. DOI had proposed
reconciling all trust account transactions above a certain value but only a sampling of
transactions below that value, back to 1938, while the plaintiffs had proposed using
production and mapping databases and DOI data to estimate the total amount due. DOI
estimated its method would show IIM losses in the tens of millions, while the plaintiffs’
methods have shown estimated losses (including interest) of more than $100 billion.
The district court on September 25, 2003, issued a structural injunction directing
reform of IIM management and ordering DOI to account for all trust account and asset
transactions since 1887, without using sampling, by September 30, 2007. Associate
Deputy Secretary of the Interior James Cason, at a hearing the following month, estimated
2 For a legal analysis of the Cobell case, see CRS Report RS21738, The Indian Trust Fund
Litigation: An Overview of Cobell v. Norton. Case documents and further information are
available at the plaintiffs’ and the Justice Department’s websites, at [http://www.indiantrust.com]
and [http://www.usdoj.gov/civil/cases/cobell/index.htm], respectively.
CRS-4
that compliance with the court order on historical accounting might cost $6-13 billion.
In November 2003 Congress enacted a controversial provision, in the FY2004 Interior
appropriations act (P.L. 108-108), directing that no statute or trust law principle should
be construed to require the Interior Department to conduct the historical accounting until
either Congress had delineated the department’s specific historical accounting obligations
or December 31, 2004, whichever was earlier. Based on this provision DOI immediately
appealed the structural injunction; the U.S. Court of Appeals for the D.C. Circuit then
temporarily stayed the structural injunction. More than a year later, on December 10,
2004, the Circuit Court overturned much of the structural injunction, finding that, on trust
reform, the injunction’s “micromanagement†overstepped legal bounds, and that, on
historical accounting, the congressional provision prevented the district court from
requiring DOI to follow its directions. The Circuit Court noted that the congressional
provision expired on December 31, 2004, but did not discuss the district court’s possible
reissue of the order. On February 23, 2005, the district court did indeed issue an order on
historical accounting very similar to its September 2003 order, requiring that an
accounting cover all trust fund and asset transactions since 1887 and not use statistical
sampling. The DOI estimated that compliance with the new order would cost $12-13
billion and appealed the order. The Circuit Court vacated the district court’s order on
November 15, 2005, finding that it was not based on specific findings of DOI breaches
of statutory trust duties, and directed the district court to keep in mind the 1994 act and
Congress’s limits on historical accounting funding in its evaluation of DOI’s historical
accounting plans. The district court has not yet issued another order on historical
accounting.
Congress has acted on the Cobell suit chiefly through oversight hearings and through
provisions in Interior appropriation acts and reports. Both the House Appropriations
Committee and the conference committee, in their reports on the FY2006 Interior
appropriations act (P.L. 109-54), stated that they rejected the position that Congress
intended in the 1994 Act to require an historical accounting on the scale of that ordered
by the district court, but no bills have been introduced in this Congress to amend the 1994
Act to delineate the historical accounting obligation.
Congress has long been concerned that the costs of the Cobell lawsuit may
jeopardize DOI trust reform implementation, reduce spending on other Indian programs,
and be difficult to fund. Current costs include the expenses of the ongoing litigation.
Possible future costs include $12-$13 billion for the court-ordered historical accounting,
a Cobell settlement that might cost as much as the court-ordered historical accounting, the
$27.5 billion that the Cobell plaintiffs have proposed as a settlement amount (in their
statement of principles for settlement legislation), or the more than $100 billion that
Cobell plaintiffs estimate their IIM accounts are owed. Among the funding sources for
these large costs are discretionary appropriations and the Treasury Department’s
“Judgment Fund,†although some senior appropriators consider the Fund insufficient for
a $12-$13 billion dollar settlement, much less a larger one. Among other options,
Congress may await further court actions, delay a court-ordered accounting, delineate
DOI’s historical accounting obligations, or direct a settlement. Thus far two identical
settlement bills, S. 1439 and H.R. 4322, have been introduced in the 109th Congress. The
bills would establish a settlement fund (whose size is left blank in the bills) from which
payments would be distributed to IIM claimants under a formula to be determined by the
Secretary of the Treasury, establish a commission to review and recommend changes in
Indian trust asset management, allow increased payments for fractionated individual
CRS-5
Indian trust interests, create a tribal trust management demonstration project, combine
BIA and OST under a new Under Secretary for Indian Affairs, and require an annual
independent audit of all Indian trust funds (for detailed discussion, see CRS Report
RS22343, Indian Trust Fund Litigation: Legislation to Resolve Accounting Claims in
Cobell v. Norton). The Senate Indian Affairs Committee held hearings on S. 1439 in July
2005 (S.Hrg. 109-194) and, with the House Resources Committee, on both bills in March
2006, but both bills await further action. Some tribal leaders have stated that tribes need
to agree on the size of the settlement fund proposed in the two bills.3
Reorganization. The DOI, BIA, and OST have undertaken, or proposed, a number
of administrative and organizational changes to implement trust management reform since
the 1994 Act. One of the more important changes was the 1996 transfer from BIA to OST
of the office that manages the trust funds; management of trust lands and other physical
assets stayed with BIA. In April 2003 the DOI undertook a new, and ongoing,
reorganization that splits the BIA trust management operations off from other BIA
services at the regional and agency levels, and creates OST field operations (by placing
fiduciary trust officers and administrators at BIA regional and agency offices) to oversee
trust management and provide information to Indian trust beneficiaries. Tribal leaders
and the Cobell plaintiffs vigorously oppose the current reorganization, claiming it
included insufficient consultation with tribes, insufficiently defined new OST duties, and
should have followed, not preceded, creation of new trust management procedures. The
DOI responded that it had consulted with tribes for a year beforehand and that it had faced
a court-ordered deadline. Attempts to halt the reorganization in recent Congresses have
been defeated, and bills proposing various changes in DOI and BIA trust management,
such as abolishing OST, assigning trust line authority to a new office, or establishing a
commission to recommend improvements in federal Indian trust laws and policies, have
not been reported from committee. S. 1439 and H.R. 4322, as noted above, propose to
reorganize DOI management of Indian trust assets.
Native Hawaiian Recognition
Native Hawaiians, the indigenous people of Hawaii, are not currently considered
Indians under federal Indian law and have no political entity that, like Indian tribes, is
recognized by the federal government. Congress has however authorized a number of
federal programs to benefit Native Hawaiians. Supporters of recognition are concerned
that the absence of a recognized Native Hawaiian political entity endangers federal and
state Native Hawaiian programs, exposing them to current legal challenges that claim the
programs are race-based. At present, Indian tribes are usually recognized either by
Congress or through the DOI’s administrative process; Native Hawaiians, however, are
excluded from the DOI process, which means congressional action is needed for a Native
Hawaiian political entity to be recognized. Three bills in the 109th Congress, S. 147, H.R.
309, and S. 3064, would establish a process by which a Native Hawaiian political entity
would be organized and federally recognized. The bills leave for later negotiations (and
legislation) questions concerning the political entity’s governmental powers and lands,
and exclude the Native Hawaiian political entity from BIA programs and from coverage
3 “Tribes Discuss Trust Reform Bill, Cobell Settlement,†Indianz.com, Jan. 31, 2006, available
at [http://www.indianz.com/News/2006/012275.asp].
CRS-6
under the Indian Gaming Regulatory Act. Some of the arguments for and against the bills
are summarized here.
Proponents argue that Congress has power to recognize a Native Hawaiian political
entity because Congress’s constitutional authority over “commerce with ... the Indian
tribes†extends to all indigenous native peoples in the United States. They also argue that
Congress has recognized a “special political and legal relationship with the Native
Hawaiian people†(S. 147, §2(21)) identical with that with Indian tribes. They point to
the numerous Native Hawaiian programs that Congress has established, especially the
Hawaiian homelands program, which was established in 1921 when Hawaii was a
territory but is now under Hawaii state control (with certain continuing congressional
duties), under which certain public lands are reserved for lease only to Native Hawaiians.
Proponents argue that Native Hawaiians have not given up their claims to sovereignty, but
rather had sovereignty forcibly withdrawn in the 1893 overthrow of the Kingdom of
Hawaii, an action led by Americans living in Hawaii and with the active support of certain
U.S. officials and armed forces there. (The new Republic of Hawaii agreed to U.S.
annexation in 1898.) They further state that Native Hawaiians, like Indian tribes, have
maintained a single distinct community, with cultural and political institutions.
Opponents dispute these points. They argue that Congress’s authority extends only
to Indian tribes, not to all indigenous peoples, and that hence Congress does not have
constitutional authority to recognize a Native Hawaiian political entity. A September
2005 Justice Department statement echoed this concern over constitutionality. Opponents
also argue that the United States does not have a special responsibility to Native
Hawaiians as it has for Indian tribes. Opponents also contend that recognition of a Native
Hawaiian political entity would be based on race alone, arguing that unlike Indian tribes
the Native Hawaiian entity would not need to meet criteria of geography, community, and
continuous political autonomy. They argue further that Native Hawaiian recognition
would set a precedent for political recognition of other, race-based, non-Indian groups.
For instance, the U.S. Civil Rights Commission on May 5, 2006, issued a briefing report
opposing passage of S. 147 as reported, citing racial discrimination concerns. In addition,
some opponents dispute the claims regarding Native Hawaiian sovereignty, arguing
among other things that Native Hawaiians’ sovereignty ended well before 1893 because
the kingdom gave political rights to non-Native Hawaiians, or that sovereignty resided in
the monarch, not the Native Hawaiian people, and ended with the 1893 overthrow.
Bills similar to S. 147 and H.R. 309 received extensive consideration in the previous
three Congresses. S. 147 was reported by the Senate Indian Affairs Committee on May
16, 2005 (S.Rept. 109-68). S. 3064, an amended version of S. 147 introduced May 25,
2006, is based on discussions among congressional offices, the Administration, and the
state of Hawaii. Senate floor consideration of the bills may occur the week of June 5.
H.R. 309 was referred to the House Resources Committee and has not been reported.
Separately, the House Judiciary Committee’s Subcommittee on the Constitution held a
hearing on July 19, 2005, on constitutional issues raised by H.R. 309 (Serial No. 109-37).4
4 For further analyses of legal and other issues, see CRS Report RL33101, S. 147/H.R. 309:
Process for Federal Recognition of a Native Hawaiian Governmental Entity.