NALU: November 1, 2010: Following the Money / Following the Lawsuits

With Congress on recess, the pace in Washington is perhaps a little less frenetic. All the frenzy has transferred to neighborhoods around the country, where incumbents and challengers are seeking your vote for offices ranging from dog catcher to senator. The pause in the congressional calendar gives us a chance to look a little deeper into two stories:

• Where’s the money? What’s going on with appropriations for Indian Country?
• Three suits, three settlements, but only two have to be approved by Congress.

This Just In: The President has issued a proclamation declaring November “National Native American Heritage Month.” See the proclamation here.

Where’s the money?

(What’s Going on with Appropriations for Federal Programs in Indian Country?)

Here’s how it’s supposed to work:

• Every year, Congress is supposed to adopt a budget by April 15. This budget – like a household budget – is an outline of anticipated spending. It is used as a guideline to parcel out chunks of spending authority to the twelve appropriations subcommittees in each chamber.
• The appropriations subcommittees each work on the budgets for one or several federal departments and write a bill for the consideration of their whole chamber (House or Senate.)
• Once these “appropriations” bills are passed in each chamber, the House and Senate create a conference committee to work out their differences on each one, and the final appropriations bills are approved by September 30, the end of the federal government’s fiscal year.

Here’s what happened this year:

• The House and Senate couldn’t agree on a budget.
• In the Senate, the Appropriations Committee agreed to a limit on “discretionary spending” – the part of the budget that is handled through the appropriations committees – and parceled out chunks of that total to its twelve subcommittees for consideration.
• Eleven of the twelve subcommittees reported their bills to the full Appropriations Committee and the bills were approved. (The Interior Appropriations bill, which includes a number of Native American programs, was the one that was not reported.)
• Then, full stop. None of eleven bills ever got to the Senate floor for final approval.

Bottom line for the Senate: no budget, no appropriations bills passed.

• The House, lacking a budget, attached an amendment to a supplemental spending bill for the wars in Iraq and Afghanistan that passed in July. The amendment, called “budget guidance,” set a limit on the amount of money the appropriations committees could deal with.
• The twelve subcommittees then set to work on their portions of spending authority and reported out their bills.
• Only two of the bills got past the full appropriations committee to be approved on the House floor: Military Construction/ Veterans’ Affairs and Transportation/Housing and Urban Development.

Bottom line for the House: no budget, two appropriations bills passed.
The fiscal year ends on September 30. What happens to all the federal departments that have no money to spend beginning October 1? On the last possible day, September 30, Congress managed to agree on a “continuing resolution” which continues the funding of the government for a few weeks or months. In this case, funding continues until December 3.
Now what will Congress do? Congress will reconvene after the elections to take care of a few pressing items. One, not surprisingly, is funding the government for the current fiscal year. Congress has several choices.

• It could try to adopt all of the appropriations bills that are somewhere mid-process in each chamber.
• It could roll all of those bills (or some modification of them) together into one huge “omnibus appropriations” bill. This bill would include updates in funding plus, in many cases, funding for new items that had been established by legislation but not funded (such as the improvements in the new Indian Health Care Improvement Act.)
• It could adopt another temporary measure – another “continuing resolution” – to delay the decision on appropriations until next year, when the new Congress is seated.

After the elections, the House and Senate will know where the power lies in each of their chambers for the coming congressional session. That fact will affect which option members support. If, for example, the majority in the House changes from Democrat to Republican, members of the Republican Party would be likely to want to delay the adoption of any appropriations measures until they are seated in the new Congress. So they would favor a temporary measure – the continuing resolution.

Then it will all begin again when the FY 2012 budget is introduced in February 2011.

Suing (and Settling with) the Federal Government

Three suits, three settlements, only two have to be approved by Congress

This is a story of three lawsuits that have been wending their way through the legal processes and on which a settlement agreement has been reached since the current U.S. administration took office. Two require the approval of Congress; one does not. Once upon a time, most lawsuits against the U.S. government, whether won in court or settled, had to be paid through a special appropriation approved by Congress. In 1956, Congress set up a permanent “judgment fund” to pay all judgments and compromise settlements agreed to by the Justice Department, if they are not otherwise provided for in appropriations. (31 USC 1304)

The parties to the Cobell suit – challenging the failure of the U.S. government to manage trust assets accurately and to pass on royalties earned from oil, minerals, and other holdings to their Native American owners – agreed on a settlement in December last year. The settlement, reached after 14 years of litigation, creates a $1.4 billion fund to pay individual claims and a $2 billion fund for land consolidation. The settlement also requires administrative improvements the Interior Department’s management processes. The settlement will not come from the judgment fund, however; it needs congressional approval before the suit’s beneficiaries can be paid.

Keepseagle v. Vilsack – an 11-year old suit against the U.S. Department of Agriculture (USDA) alleging discrimination against Native Americans in the handling of agricultural loans and other services – has reached a settlement for $760 million this month. The settlement also places a moratorium on foreclosures against farmers represented in the suit, and requires changes in USDA’s farm loan programs to improve responsiveness to Native American concerns. The parties to this suit, however, will not have to wait for congressional approval. Once the court approves the agreement, the Judgment Fund will cover the cost of the settlement.

A case known as Pigford II is similar in many respects to the Keepseagle case. The original case, Pigford v. Glickman, was filed in 1997. It alleged discrimination in the USDA’s handling of written complaints submitted by African American farmers regarding charges of race discrimination in agricultural loan programs and other services. The suit was settled in 1999 with a consent decree. However, many farmers were unable to have their claims heard before the deadline set by the Pigford consent decree; those farmers were left out of the settlement. The Attorney General and the Secretary of Agriculture have now announced a settlement (in Pigford II) of these remaining claims, and the president requested a $1.15 billion appropriation to cover the claims. The claims, however, will not be paid out of the Judgment Fund; Congress will have to approve the additional funding requested for the settlement.

Two other suits, alleging discrimination by the USDA against Hispanic farmers and women farmers, are still in the courts.

In congratulating the parties to the Keepseagle settlement, President Obama and USDA Secretary Tom Vilsack spoke of remedying past wrongs and “closing the chapter on an unfortunate civil rights history at USDA.” The rights cannot be remedied, however, if the U.S. will not approve the payment of judgments.

In the Cobell case, the parties agreed that Congress would have to approve the settlement “without material changes.” The agreement set a deadline of December 31, 2009, after which the agreement would be “null and void.” That deadline has been extended several times. The latest extension is to January 11, 2011. The House approved funds to cover the settlements in both the Cobell case and the Pigford II case; the Senate has not. The next opportunity is the lame duck session. After that, if Congress hasn’t agreed, the parties could abandon the settlement and return to litigation. Could the parties drop the part of the settlement that requires congressional approval and turn to the judgment fund for payment? Is there a technical difference keeps the Pigford II case away from the Judgment Fund, and allows payment for Keepseagle? The legal teams involved in these complex suits can probably explain. This observer cannot.

Resources:

1. New List of Federally Recognized Tribes Released

In October, the Department of the Interior released a new list of federally recognized tribes. The list is updated every couple years. The recognition process is a rigorous one that requires tribes to meet several criteria supported by anthropological, genealogical, and historical evidence. It can take many years. A federally recognized tribe has a different relationship with the federal government, including some jurisdictional authorities and acknowledgment of the federal trust responsibility to provide federal funding and assistance programs. Three tribes have newly gained recognition since the list was last updated in YEAR, bringing the total number of federally-recognized tribes up to 565.

2. FCNL Washington Newsletter, November/December 2010 (coming soon!).

The upcoming issue of the Washington Newsletter is all about Indian Country. Entitled “Life and Laws in Indian Country,” this issue reviews the Tribal Law and Order Act and Indian Health Care Improvement Act passed in 2010 and previews legislation that we anticipate in 2011. Watch this space for an on-line preview of the issue. If you don’t regularly receive our print newsletter, you can sign up to receive it by sending your name and address to us. Congressional Schedule: Congress is back in town on November 15, working for about a week until the Thanksgiving break. It will then reconvene on December 1, try to figure out how to fund the government by December 3, and leave (very possibly) for the holiday season sometime in the following week.

Not many days to resolve thorny questions that weren’t resolved since the second session of the 111th Congress began in January 2010.