We’ve just been through the opening year for the new administration and the 115th Congress. It was a year that was all about budgets and spending and taxes and health care. You probably noticed.
Each of those broad topics — budgets and spending and taxes and health care — has a major impact in Indian Country. But they’re not the only issues to consider; there were several more specific policy issues taken up in 2017.
This Update will take a look at the issues we followed in 2017, and summarize how they’ve turned out so far. We’ll check in on how things are starting off in 2018, and point to some resources from the Native American Legislative Updates we published in 2017, and from other sources. You may download this [end-of-2017 wrap-up] (http://www.fcnl.org/documents/530) as a .pdf document, or read it here on line.
To find more Update articles and topics, see the Topical Index for the First Session of the 115^th Congress.
Honoring the Promises?
Among the promises made to Indian nations, in exchange for millions of acres of land and resources, were assistance with food, housing, health care, education, economic support, and a future for Native people. How has the 115th Congress honored these promises so far?
It’s a mixed story. The programs that implement these promises were wrapped up in the details of budget and tax deals, and they were more or less forgotten in the initial considerations of health care finance restructuring.
A resource notes: Italicized terms in these paragraphs are explained in the first two resources listed below, which explain the federal budget (and how it operates) in plain English.
The Federal Budget
The Issue:
Programs in Indian country rely heavily on the federal budget. The federal government, after all, is the primary holder of the trust responsibility toward tribes. That’s why congressional budget foibles have an intense impact on Native Americans and Native communities.
What Happened in 2017?
Congress is chronically late on budget approvals. FY 2018 began on October 1, 2017. The House approved FY 2018 spending levels in an omnibus appropriation, passed on September 14, 2017. The Senate, on the other hand, has not approved a final bill as of this writing.
Congress has been limping along on continuing resolutions that delay decisions by a few months or a few weeks. The recent brief government shut-down was caused by a lack of agreement on spending bills… and therefore, a lack of permission to spend money. The current continuance expires this week (February 8). Congress is expected to adopt another temporary extension, perhaps through March.
The stories below, however, look back to what happened (and didn’t happen) in 2017. In these stories, the approval in the House refers to the approval of H.R. 3354 (an omnibus appropriation) on the House floor on September 14, 2017. Approval in the Senate refers to approval by the full Senate Appropriations Committee, because these bills never got to the Senate floor. The “proposed budget” refers to the proposals of the new administration, last spring. The president’s new budget proposal for FY 2019 is expected in the middle of February.
Resources:
Federal Budget Terms in Plain English: No need to puzzle over the true meaning of terms such as regular order, federal budget, appropriations, authorization, reconciliation, continuing resolution, omnibus, or even “cromnibus.” Check out How Does the Federal Government Budget? and the Federal Budget Glossary. All will be explained.
Is reconciliation a peaceful process? See the political purpose of the reconciliation process described in [Budgeting in an Uncertain
World](https://www.fcnl.org/updates/budgeting-in-an-uncertain-world-557) in the January Update.
What happens when Congress can’t decide? See the potential impact in Indian country of a continuing resolution when Congress can’t settle on actual budget amounts for a new fiscal year. [Update:
Following the Money](http://www.fcnl.org/updates/updated-following-the-money-780) in the April Update.
And did Congress decide anything? See the reports in the [August Update](https://www.fcnl.org/updates/native-american-legislative- >update-august-2017-1002) on the decisions of various appropriations committees on programs that affect Indian country. Some of the committees did good work, even though their decisions are not yet final (as of February 2018).
Education
The Issue:
Schools owned and operated by the federal Bureau of Indian Education (BIE) are badly in need of repair and placement.
What Happened in 2017?
Early in 2017, the President proposed a FY 2018 budget with a 40 percent cut from school construction and repair funding, compared to what was approved for FY2017. The full House and the Senate Appropriations Committees restored the previous amounts, with small increases. (House: $138,245,000: a 3.7 percent increase over FY 17 levels; Senate Committee: $136,268,000: a 2.3 percent increase.)
Also in 2017, the BIE was the subject of several critical federal government reports, citing the system for poor management and oversight, the continued failure of BIE staff to inspect the safety of all BIE schools annually, and the lack of training for all staff in safety issues. The Senate committee expects the increased funds to be used in response to safety inspections that identify immediate problems.
More Issues:
Bureau of Indian Education (BIE) schools have a poor record of graduating students with the skills they need for the 21^st century. The agency seems to be unable, not only to maintain the physical condition of the schools, but also to staff and support educational programs adequately.
What Happened in 2017?
The Administration recommended an overall cut of 12 percent from Elementary and Secondary Education programs in and near Indian country, including the Johnson-O’Malley program, which supports special programs and assistance in non-Indian schools with large concentrations of Native American children. Both the Senate Committee and the full House approved an increase of close to 4 percent over 2017 levels.
For tribal colleges and universities and post-secondary programs (including scholarships) serving Native Americans, the administration proposed a cut of about 28 percent from 2017 levels. The appropriators in the House and Senate approved levels close to what was approved for 2017, with the House reducing funding by close to $1 million, and the Senate committee increasing funding by a little more than half a million dollars.
In May, the Senate Committee on Indian Affairs passed the Native Educators’ Support (NEST) Act, introduced by Senator Tester as S 458, which would support the education and training of Native American teachers and others who would commit to teaching in BIE schools. The Congressional Budget Office scored the bill as costing $545 million during its first five years, a price tag that may complicate its passage. Also in May, a companion bill (HR 2727) was introduced by Representative Ruiz in the House a few days later.
What’s Ahead in 2018?
The president is expected to reveal his budget proposals for the next fiscal year – FY 2019 – in mid-February. Given the huge tax cuts that Congress approved, and the substantial increases the president has already proposed for the military budget, budget cuts will have to come from somewhere. The programs that Congress has protected so far for FY2017 and 2018 will be vulnerable to deep reductions.
Resources:
Report of School Facilities and Construction Negotiated Rulemaking Committee, 2011, Broken Promises, Broken Schools
Ten BIE Schools Chosen for Replacement, Native American Legislative Update, May 2016.
Report Cards, Native American Legislative Update, June 2017.
General Accountability Office, High Risk Series, February 2017.
Office of the Inspector General in the Department of the Interior, Condition of Indian School Facilities, October 2016.
Indian Schools and Indian Education – a Budget Short Story, Native American Legislative Update, June 2017.
Preservation of Native Languages and Culture
The Issue:
Native languages are rapidly disappearing. The combined legacies of the assimilation era, the termination era, and the boarding schools (which forbade the speaking of Native languages) have resulted in the potential loss of as much as half of the 300 languages originally spoken on this continent. For many of the remaining surviving languages, only a few elders remember the language, and the children are not learning to speak it.
Other aspects of Native culture are also disappearing, as important cultural items are sold illegally or stolen, and are then exported to lucrative markets primarily in Europe. Some of these items are critical to the survival of tribal traditions and practices.
What Happened in 2017?
In late November, the full Senate approved a bill (S 254 by Senator Udall) to reauthorize the Esther Martinez Native American Languages Preservation Act through 2022. The bill was then sent to the House Committee on Education and the Workforce for further action. Language preservation has strong support in Congress, but getting any bill through all of its hoops is a challenge in this session.
Cultural Heritage: Senator Heinrich introduced a bill to protect illegally obtained Native American cultural items from being exported to overseas markets, the “STOP Act” (Safeguard Tribal Objects of Patrimony – S 1400.) The bill creates a specific crime of exporting items that were obtained illegally under existing laws, such as the Native American Graves Protection Act, or the Archaeological Resources Protection Act, and encourages the voluntary return of “culturally, historically, or archaeologically significant objects, resources, patrimony, or other items that are affiliated with a Native American culture.” A number of museums and cultural groups have pushed back with concerns about the vagueness of the requirements in the bill, and the inability of purchasers to know what is and is not legal to purchase. For now, the bill remains in the Senate Committee on Indian Affairs.
A similar bill, HR 3211, introduced in the House by Representative Lujan, has been referred to the Subcommittee on Indian, Insular and Alaska Native Affairs and the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.
Resources:
Administration for Native Americans, Administration for Children and Families, U.S. Department of Health and Human Services, About Native Languages.
A 2008 Update article describes legal context for reclaiming cultural items and human remains.
The Esther Martinez Native American Languages Preservation Act is explained in the hearing record (a .pdf) of the Senate Committee on Indian Affairs hearing of November 18, 2015, in the testimony of Lynn Sparks, Commissioner of the Administration for Native Americans.
The same hearing record (a .pdf) also includes the testimony of Robert Moquino, First Lieutenant Governor, Pueblo of Acoma, who commented on the accelerating loss of languages.
To learn what native languages were spoken in the area where you live, check the website of Native Languages of the Americas.
Children and Youth
The Issue:
Native American children are often poorer, less healthy, hungrier, less educated, and more exposed to violence than other groups of children in the U.S. Most alarmingly, they have higher (and growing) rates of child mortality and youth suicide than other groups. These statistics dwell within cultures and communities that prize and cherish their children. The problems dwell in a failure of the federal trust responsibility toward the tribes. Multiple federal agencies own programs that should be able to deliver on the promises to assure a future for Native children, but the agencies are not successfully meeting the challenge.
What Happened in 2017?
Children’s Commission. In the 114^th Congress, Senator Heitkamp proposed the creation of the Alyce Spotted Bear and Walter Soboleff Commission on Native Children in the Office of Tribal Justice of the Department of Justice, to identify the barriers and gaps in the programs that are supposed to serve Native children, and to create a coordinated network among the involved agencies. In 2016 Congress passed her bill, and its companion introduced in the House by Representative McCollum. In 2017, Senator Heitkamp and Representative McCollum pushed to have individuals named to the 11-member commission by Congress and the Administration, as outlined in the bill. So far, about half of the members have been named, and the commission awaits the appointment of five more.
Native Youth in the Justice System. The Senate reauthorized the Juvenile Justice and Delinquency Prevention Act (S 860) for five years. The House has not yet acted on HR 1809, the House companion bill. The bill specifically includes tribes and Native youth in all of the grant provisions. In addition, the bill calls for an in-depth study, in consultation with tribal justice authorities, of the specific needs of Native youth who have entered the criminal justice system. However, the bill does not include several provisions specific to Native youth, as recommended by the National Congress of American Indians.
Resources:
From the October 2016 Update, a story on the passage of the Children’s Commission bill.
Recommendations of the National Congress of American Indians re provisions that should have been included in the Juvenile Justice and Delinquency Prevention Act, as reported in the April 2017 Update.
Justice and Violence
The Issue:
Jurisdictional challenges and lack of resources have bedeviled the efforts of tribal justice authorities to keep their communities safe. Continued and growing challenges include opioid and heroin addiction and trafficking, human trafficking, and predatory acts by non-Indians, sometimes those who work nearby on a drilling or mining project. Nearly 6,000 Native women and girls were reported as “missing” in 2016. Between 2013 and 2016, there were only 14 federal investigations and two prosecutions.
What Happened in 2017?
Missing and Murdered Native Women and Girls. In both houses of Congress, committees convened hearings on the issue of Missing and Murdered Indian Women and Girls. Congress acknowledged May 5 as an annual day of remembrance, and began considering legislation to address some of the problems named in hearings.
A lack of information and data was identified as a key issue. Senator Heitkamp introduced Savanna’s Act (S 1942) to require several federal agencies to collaborate on gathering information needed to address the problem, and to create a coordinated response of federal, state, and local authorities in cases of missing Native women and girls.
The Senate passed two anti-human-trafficking bills. One, S 1311 by Senator Cornyn, focuses on a victim-centered approach to investigation and prosecution, and on best practices for victim services. Another, S 1312 by Senator Grassley focuses on child victims of human trafficking. Both bills passed the Senate and are being considered in a House committee.
Victims’ services. Crime victims generally have access to funds for compensation and services through a state allocation of monies collected from convicted criminals (often for large-scale financial crimes). For the past ten years, advocates have asked for language that would assure a 5 percent tribal allocation for victims, parallel to what states receive. This allocation has been blocked because it has not been authorized in policy legislation. In 2017, the SURVIVE Act was introduced Senator Hoeven as S 1870, to provide the required authorization. The bill was approved by the Senate Committee on Indian Affairs in December.
Funding for Tribal Justice and Victims Services. When the Violence Against Women Act (VAWA) was amended in 2013 to include provisions that apply in Indian country, advocates began seeking funding to match the promises. Since 2016, Congress has been providing increased funding to tribal police, to Justice Department programs that assist tribal justice systems, and to several programs that specifically address violence against Native women. Again in 2017, appropriations committees in both the House and the Senate allocated funds to maintain or strengthen these programs.
What’s Ahead in 2018?
The SURVIVE Act – assuring access to victims’ services funds for tribal victims – was introduced in the House in January as HR 4608. This bill is both very important in Indian country and very possible to pass in 2018. The tribal share of the “Victims of Crime” fund would substantially improve the funding picture for services that make victims (and their families) whole, and support for plans to prevent recurrences of the violence.
The Violence Against Women Act of 2013 is due for reauthorization in 2018. That task would require substantive hearings and consideration of how the whole law has functioned in the last five years, including the changes made in Indian country, at the border, and in inclusion of LGBT victims. In an election year – which tends to be short – it is unlikely that Congress can accomplish such a huge task. So although the authorization will officially lapse at the end of the year, the programs will probably need to continue into 2019, with some kind of short term continuance.
The Tribal Law and Order Act, which also restored jurisdiction to tribal police in some circumstances, is past due for reauthorization. This is another huge task that may not be accomplished this year. The Senate Committee on Indian Affairs has considered a bill (from the last Congress) by Sen. Barrasso, who was then the chair of the committee. The committee has held hearings and at least one roundtable discussion about some of the alternatives possible under the bill. But the committee does not appear to be ready for decisive action in 2018.
The reauthorization of the Juvenile Justice and Delinquency Prevention Act passed the Senate, but has not yet passed the House. It is possible that the House could move quickly on this bill, and perhaps also on the two human-trafficking bills that have been referred to a subcommittee of the Judiciary committee.
Resources:
In the April 2017 Update, there’s a notice of the designation of May 5 as the day of remembrance of missing and murdered Native women and girls.
Also in April, we included a story about the Juvenile Justice and Delinquency Prevention Act and the recommendations of the National Congress of American Indians re justice for Native youth.
In the June 2017 Update, we looked at the budget for tribal justice programs, and in August, checked in about how the appropriations for these programs were faring.
And in the September/October edition, we talked about justice and violence in Indian country, including human trafficking, Savanna’s Act, the SURVIVE Act, and the Tribal Law and Order Act. This resource includes links to two General Accountability Office (GAO) reports on human trafficking in Indian Country.
Water and Land
The Issue:
The issues of water and land and Native peoples intertwined at Standing Rock in 2016, when many of the water protection events occurred. We reported on developments related to Standing Rock many times during 2016.
As the harsh Dakota winter set in, the leaders of the Standing Rock Sioux tribe declared that “the sacred fire of the seven councils has been put to sleep” and asked people gathered at Oc’eti Oyate to leave the camps for their own safety and health.
The fire was put to sleep, but there was more to learn. We recapped much of what we heard and understood from Standing Rock in articles in the November 2016 and December 2016 Updates. We reflected on the connections between Standing Rock and other vulnerable land and waterways in other parts of the country.
What Happened in 2017?
We catalogued the actions and arguments of the new administration, about consultation,permitting and posturing, and the final orders to go ahead with the project.
In March, we participated in the Native Nations Rising March, helping groups of Indian and non-Indian citizen lobbyists prepare for their visits with members of Congress, and reported on the experience.
By April, we were musing about the supposed powers of presidents to “repeal” a monument declaration, as the new administration looked for ways to “un-do” President Obama’s proclamation making Bears Ears a national monument.
In June, representatives of the five tribes involved in the Bears Ears Coalition gathered for a press conference in Washington. Their message: “Leave it just as it is. You cannot improve upon it.” We invited readers to add their views to the 685,000 comments of potential visitors to the protected site, in favor of keeping the monument declaration. Ultimately, Interior Secretary Zinke recommended reducing the size and protections of [ten national monuments,] (https://www.fcnl.org/updates/traditional-and-fragile-lands-1100) including shrinking the size of the Bears Ears protected area by 85 percent.
By September, we found that attention was needed in another fragile area, the Alaskan National Wildlife Refuge, an area precious to the Gwich’in. The administration moved to lift the protections of the refuge and allow oil drilling to go forward.
What’s Ahead in 2018?
This Congress is likely to be very active with this president on reducing protections for land and water (and air) both within and outside of Indian Country. Already, the chair of the Natural Resources Committee in the House, Rep. Bishop of Utah, has introduced a bill to limit the powers of a president to declare a monument, and to allow such declarations only with the consent of the Congress. (The “National Monument Creation and Protection Act” — H.R. 3990.)
There are allies in Congress, such as Rep. Grijalva of Arizona, who again re-introduced his “Save Oak Flat” bill (HR 2915) to repeal a non-germane, last-minute amendment to the 2014 National Defense Authorization Act. The amendment would allow a copper mining company to set up mining operations in a culturally sensitive site near the lands of the San Carlos Apache.
Representative Harold Rogers of Kentucky introduced a bill (HR 1731) to assist states and tribes in cleaning up abandoned coal mines, to reclaim and restore land and water resources in distressed communities. Tribes affected by the collapse of the Gold King Mine in Colorado have pushed determinedly for compensation and assistance with restoration to their downstream lands – and congressional committees have, so far, backed the tribes’ efforts.
The best hope lies in the strength of tribal leaders, and their increasing willingness to push back against developers and polluters in and near their lands. There is strength to build on, from the coalescing of tribes and religious and environmental groups at Standing Rock, under tribal leadership. In this respectful partnership, there is a future.