Piliero Mazza &
Pargament, PLLC


Vol. 3, Issue 2
February 2001


Addressing Tribal and Alaska Native Corporation
Legal and Business Issues


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A R T I C L E S


TRIBAL LAND
FInal Land Acquisition Regulations Issued by BIA



LEGISLATION
New Chairmen/New Rules May Impact Native American & Alaska Native Legislation



INTERVIEWS WITH TRIBAL LEADERS ACROSS AMERICA
Interview with Governor Alvidrez – January 5, 2001



ON THE HILL
How a Bill Becomes Law



INDIAN HEALTH
Indian Health Service Holds Level of Need Funding Workgroup Regional Consultation in Washington, D.C.



FEDERAL
Temporary Fule Issued for Distribution of IRR Funds



ASK THE ADVOCATE
Who is Gale Norton?




H O M E


P U B L I C A T I O N S




TRIBAL LAND

Final Land Acquisition Regulations Issued by BIA

On January 16, 2001, the Bureau of Indian Affairs ("BIA") issued final land acquisition regulations. These regulations revise and clarify the procedures for requesting trust status, establish definite criteria for the BIA in determining whether an application for trust status should be granted, describe the procedure for mandatory acquisitions and establish a procedure whereby tribes with no reservation or functional trust land can establish a tribal land acquisition area. These regulations were scheduled to become effective on February 15, 2001. However, upon taking office, President Bush issued an Executive Order requiring a 60-day postponement of the effective date of certain published regulations that had not yet taken effect. According to the Office of Trust Responsibilities, the effective date of the new land acquisition regulations has been postponed for a period of 60 days in compliance with the President's mandate.

These regulations were originally published on April 12, 1999. Almost two years and several hundred comments later, the BIA issued regulations that are substantially similar to the ones that were originally proposed. (See the September 1999 issue of the Tribal Advocate for discussion of proposed rule.) The major amendments in the final rule include the following: the inclusion of tribes with no trust land or non-functional trust land to the list of tribes eligible to apply for a tribal land acquisition area ("TLAA"); a provision establishing time guidelines for the issuance of a decision regarding trust status; a provision regarding the applicability of the new rule to pending trust applications; clarifications consistent with a presumption of approval for applications addressing on-reservation land; and clarifications consistent with an enhanced consideration of local government interests with respect to applications involving off-reservation land.

In response to several comments, the final regulations expand the definition of TLAA- eligible tribes to include tribes with no trust land or a trust land base which is incapable of being developed to facilitate the tribe's housing and economic needs. Although this rule eliminates the ability of tribes to obtain tribal consolidation areas as provided under the former regulation, tribal consolidation areas created under the old rule will remain in force and effect for the purposes for which they were approved. However, previously approved tribal consolidation areas will not automatically be converted to TLAA's under the new rule. Tribes wishing to amend or modify a tribal consolidation area to include provisions of a TLAA are required to apply for approval under the new TLAA regulations.

The new regulations also extend the originally proposed ten-year period for the acquisition of additional land within a designated TLAA to a twenty-five year period. This amendment was made in response to comments suggesting that ten years was an insufficient amount of time given the requirements for completing and securing approval to an acquisition.

In response to many comments suggesting that the regulations establish time guidelines for the completion of the trust application process, the BIA amended the final rule to include a provision requiring that, once a "complete application" has been received, the BIA will make a decision as to whether to accept or deny an application within 120 days. Initially, this provision seems to provide a mechanism for shortening a process that can take many years to complete. However, the 120-day guideline applies only to the time it takes the BIA to make a decision as to whether to approve or deny the request for trust status. It does not apply to the initial review of a trust application to determine whether it is complete or to the completion of a preliminary title opinion or the issuance of a final warranty deed. As such, the 120-day guideline may have little or no effect on the time it takes to fully process a trust application.

In response to concerns regarding the applicability of the new regulations to pending trust applications, the BIA added provisions to the final regulations defining a "complete application." The comments to the final regulations state that all pending applications that meet the definition of a "complete application" prior to the effective date of the rule will be processed under the previous rule, while those applications that do not meet the definition will be processed under the new rule. Given the substantially increased burden posed by the new regulations on off-reservation land applications, it is imperative for tribes with pending applications to ensure that they meet the definition of a "complete application" before the new rule goes into effect, or they will be forced to comply with the new regulations and may be required to submit new information and materials in support of their application.

A "complete application," as defined in Section 151.5(e) of the final rule, includes the following:

1. The applicant's request that the land be taken into trust;

2. Documentation that the applicant has addressed all applicable information requirements;

3. A map showing the location of the land to be acquired, including:

a. a legal description of the land and a statement regarding the acquisition of any surface or mineral rights; or

b. a survey of the land if it is not susceptible to legal description;

4. Hazardous Level I Environmental Survey;

5. Environmental documentation;

6. Title evidence;

7. Impact notification letters to local and state officials, including all responses;

8. Statement from the applicant that all existing rights of way, easements or encumbrances will not interfere with the applicant's intended use of the land; and

9. Any additional information requested by the BIA.

Once the above information has been received by the BIA, they are to notify the applicant in writing that the application is complete. The 120-day time guideline, discussed above, does not start running until the BIA sends this letter. Once the BIA makes a decision regarding the approval or denial of an application, it will send notification letters to the applicant and all parties who submitted comments on the original request. If the application is approved, and once the administrative appeal period has expired, the BIA will then request a preliminary title opinion. After the title opinion has been completed and any defects have been cured, a notice of the decision to take the land into trust will be published in the Federal Register or a local newspaper stating that the land will be taken into trust no sooner than thirty days after the date of publication. Once the thirty-day publication period expires, and assuming that no judicial appeals have been filed, the BIA will execute a final warranty deed and the land will officially be placed in trust.

The final regulations make clear that the BIA's evaluation criteria differ depending upon whether the application involves on-reservation or off-reservation land. One major change between the new regulations and the former regulations is that the new regulations treat land contiguous to a reservation as off-reservation property. Although the comments to the final rule state that applications involving contiguous land will be given more favorable consideration, they will still be subject to the more onerous documentation requirements applicable to off-reservation applications. (See September 1999 issue of the Tribal Advocate for a description of the application requirements). Although several comments to the proposed rule were submitted urging the BIA to continue treating land contiguous to a reservation as on-reservation land, the BIA rejected this suggestion.

Overall, the final regulations provide a much more burdensome application process for the acquisition of off-reservation land into trust than was required under the former regulations. The new regulations also provide a more structured evaluation process for the decision of whether to approve or deny an application. This evaluation process includes a presumption in favor of approving on-reservation applications and a much more restricted process for the approval of off-reservation applications, with more consideration given to the comments and opinions of local governments. While it is clear that tribes will face a more burdensome application process for off-reservation applications, it remains to be seen whether the new evaluation process will effect the number of trust applications approved.





LEGISLATION

New Chairmen/New Rules May Impact Native American & Alaska Native Legislation

In many ways, the 107th Congress appears to be similar to its predecessor: a vast majority of incumbents, a Republican majority, and a similar set of issues. However, there is one notable and crucial change in each chamber this year that could greatly affect consideration of Native American and Alaska Native legislation in the upcoming Congress. In the House of Representatives, the Republican leadership has elected several new committee chairpersons, in accordance with their 1995 promise that chairmen would serve no more than six-year terms. The affected committees include those that deal with the majority of Native American and Alaska Native legislation and issues. In the Senate, the 50-50 split has created a new power-sharing agreement between Democrats and Republicans that will change the way that all legislation passes through the Senate. The following is a brief summary of these significant changes to the House and Senate.

The House Committee on Resources, which deals with matters concerning Alaska public land and federal reserved water rights, matters relating to the management of Indian lands and the payment of land claims out of Indian funds, and all matters regarding the relationships of the United States with Native Americans, Alaska Natives and Native Hawaiians, will now be chaired by Representative Jim Hansen (R-UT). He replaces Representative Don Young (R-AK), who will now chair the House Transportation and Infrastructure Committee. Representative Hansen had previously chaired the Resource Committee's Subcommittee on National Parks and Public Lands. Representative Young will still sit on the committee and should retain a significant influence as its second ranking member. During Congressman Young's tenure, all Native American issues were handled at full committee level. However, now we understand that these issues will be handled by a yet-to-be-determined subcommittee.

The House Judiciary Committee will also see a change at the top, as Representative Jim Sensenbrenner (R-WI) replaces Representative Henry Hyde (R-IL), who moves on to chair the House International Affairs Committee. Representative Sensenbrenner will now oversee the committee's handling of Indian gaming, law enforcement, Tribal justice systems as well as tribe-specific private relief legislation.

Native American and Alaska Native tax issues will be in the hands of a new chairman as well. Representative Bill Thomas (R-CA) replaces retired Representative Bill Archer (R-TX) as head of the House Ways and Means Committee. The Ways and Means Committee has in recent years also dealt with Native American housing, education and employment issues. Representative Thomas is expected to be a key player in assisting President-elect Bush's proposed tax cut. At this time, there is no indication as to what, if any, Native American or Alaska Native tax credits will be considered by the committee.

The Senate committee chairs that deal with Native American issues will remain mostly unchanged from the previous Congress. Republicans regained control of the chamber on January 20th, when Vice President-elect Cheney was sworn in, replacing Vice President Gore as the tie-breaking vote in the 50-50 Senate. The Democrats held the majority from January 3rd (when new Senators were sworn in) through January 20th. After January 20th, the Republicans l regained the Senate majority that they held in the previous Congress.

Because of the historic 50-50 split, the Senate has agreed to a unique power-sharing agreement that will make legislation easier to get to the Senate floor. Under the agreement, Senate committee membership will now be split evenly among the two parties, with Republicans maintaining committee chairperson positions. However, a tie vote in a Senate committee will no longer mean rejection of a bill. Under the new agreement, bills that receive a tie vote in committee can still be brought to the Senate floor by the Senate majority leader. Additionally, tie votes on Senate bills in subcommittee will now be allowed to go to full committee.

The effect of this agreement on Native American legislation is not certain, but all appearances indicate that it will be generally easier to get legislation to a full committee and to the Senate floor than in years past. Legislation passing through the Senate Indian Affairs Committee (SIAC) should not be greatly affected by the change. As Paul Morehead, Staff Director and Chief Counsel for the Senate Committee on Indian Affairs noted in the January 2001 issue of the Tribal Advocate, the SIAC is a very bipartisan committee, and the good working relationship between Committee Chairman Ben Nighthorse Campbell (R-CO) and ranking minority member Senator Daniel Inouye (D-HI) allows for more agreement with respect to legislative initiatives. However, in committees where partisanship is traditionally more evident, such as the Senate Environment and Public Works Committee and the Senate Finance Committee, an increase in approved legislation could result, as a purely partisan vote by either party can now lead to the movement of that legislation. However, the ability of Democrats to bring legislation to the floor without any Republican support will still be hindered by the fact that a Republican, Senate Majority Leader Trent Lott (R-MS), will make the final decision on whether to debate a particular bill.

While the leaders and rules in the 107th Congress may be new, the full practical effects will not be known until the legislative process begins in full. The Tribal Advocate will monitor important Native American and Alaska Native legislation as it is handled by new leadership under new rules in Congress. As in the past the Tribal Advocate will maintain a legislative grid, tracking the progress of important Native American and Alaska Native legislation.

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INTERVIEWS WITH TRIBAL LAND LEADERS ACROSS AMERICA

Interview with Governor Alvidrez
January 5, 2001

The Tribal Advocate is pleased to present a new feature article, "Interviews with Tribal Leaders Across America - Economic Development on the Reservation." Several times a year, the Tribal Advocate intends to interview a Tribal Leader or a CEO from a tribe or Alaska Native Enterprise or Corporation. These interviews are offered in hopes that discussions on ways in which particular tribes are working to develop economically will be beneficial to others.

This article features the Tigua Indian Tribe of the Ysleta del Sur Pueblo located in El Paso, Texas. Tribal Governor Albert Alvidrez was kind enough to speak with the Tribal Advocate and offer the following information.

Tribal Advocate (TA): Governor Alvidrez, congratulations on your re-election to a second term as governor of the Ysleta del Sur Pueblo. I understand that you, six-term Lieutenant Governor Filbert Candelaria and the entire Tribal Council were re-elected for 2001. Please share a little about the Pueblo and how it is governed.

Governor Alvidrez (Governor): Thank you. The Pueblo is governed by oral tradition. We have no constitution or other organizing documents. Oral tradition vests the authority to govern in the Tribal Council which includes the Governor, the Lieutenant Governor, the Tribal Alguacil or Sheriff, the War Captain, four Councilmen and our Cacique or Tribal Chief who is the titular head of the tribe and is responsible for maintaining the traditions and rituals for the tribe. The Cacique is the ultimate authority for all tribal members. Our traditional Tribal Council elections are held shortly after sunset each December 31.

TA: The Tigua Indian Tribe received federal recognition in 1987 through Congressional enactment of the "Tribal Restoration Act." How did this recognition affect the economic status of the Tribe?

Governor: The Tribe was economically disadvantaged for a very long time. We were under the authority of the State of Texas through the Texas Indian Commission and were not receiving any federal funds. Then, the State voted to eliminate the Commission which would end what little assistance we were receiving from the State. As a result, we sought federal recognition which we received in 1987. As a result of this recognition, the Tribe became eligible to receive federal money for housing, health care, education and infrastructure development. Federal recognition has also enabled the Tribe to develop a diverse business base. We use the revenues from these businesses to supplement federal dollar shortfalls.

TA: Please give some examples of how the Tribe's business revenues are used to benefit the Pueblo.

Governor: The revenues from our economic enterprises have enabled us to provide health insurance for all Tribal members and their spouses. We have purchased parts of our traditional and aboriginal lands back from private property owners. We developed an elders program which includes, for example, nutrition and health care. We have increased educational opportunities available to our children and have developed a scholarship program so that any tribal member can further his or her education so long as they meet and maintain certain criteria. As a result, many of our tribal members are now receiving higher education. Our tribal enterprises have also created jobs, lowering our tribal unemployment rate to less than one percent (1%). These funds have also enabled the Tribe to organize a Tribal police department and a Tribal Court System. All of these accomplishments have enabled our tribal members to improve their overall quality of life.

TA: What are some of the current obstacles facing the Pueblo?

Governor: We live in the State of Texas which does not recognize tribal sovereignty and the rights of Native American Communities. In fact, we are currently in litigation with the State because Texas refuses to recognize the Tribe's sovereign right to engage in gaming on its reservation, as the state engages in gaming. This enterprise is not only a life line for the Tribe, it is also important for the entire El Paso community. The casino employs over 1300 people, many of whom are minorities. A large percentage of this workforce was unemployed before coming to work for the Tribe. We offer the best pay and the best benefits packages in the area and are one of the top employers.

Through revenues earned from the Casino, we support small businesses and minority-owned small businesses and participate in the "Buy El Paso" program. The Tribe contributes to the local Girl Scouts, the Boys' Club, local hospitals, historical building preservation and to many community-sponsored charities and events. The efforts of our enterprises, including the Casino, have also had an overall effect of increasing local property values. So the economic viability of the Tribe, the community and the future of our children is threatened by the lawsuit. It is the biggest obstacle facing the Tribe.

TA: Does the Tribe have the support of the local officials?

Governor: Oh, yes. During my tenure as governor, the city and the mayor's office have been extremely supportive of the Tribe, its enterprises and the contributions that the Tribe makes to the community. We work together to increase tourism. El Paso is becoming more of a showcase for tourism, in part because of the casino and the rich history and culture of the Pueblo. For a very long time, El Paso did not feel as though it was a part of Texas because most of the state money went to places like Dallas and Houston. But now, because of the collective efforts of the Tribe, the County, the City and our representatives in Austin, El Paso is on the map and is getting a larger share.

TA: Has the Tribe made any efforts to increase the sensitivity of state officials to its unique status and to its needs?

Governor: Yes. As the Tribe has developed the resources, we have been involved politically and have engaged in a public awareness campaign designed to let people know who the Tribe is, where we came from, what our sovereignty means and what we are doing in the way of economic development to benefit our members and our communities. We recently completed a documentary that describes the history of the Pueblo, its present and its future plans.

We feel that all of these efforts are helping to slowly redefine the views and beliefs of the Texas politicians - which I might describe as the "Wild West Syndrome." At a minimum, our efforts have given us an opportunity to sit with some friendly politicians to discuss issues of importance to the Tribe.

We haven't been 100 percent successful and we have a long way to go. For example in 2000, we were very far along in lowering the blood level required to qualify as a Tigua from 1/8 to 1/16. Because of special circumstances, we need an act of Congress to accomplish this. One bill had passed the House and the Senate Indian Affairs Committee and was scheduled for a voice vote by the full Senate. If passed, this bill would have prevented the Tribe's possible extinction within 3 generations. However, at the last minute, our own Senator, Phil Gramm, stopped the bill from going through. So, as you can see, we still have a long way to go.

TA: What do you see as the Tribes' potential for continued economic development in 2001?

Governor: Our efforts in 2001 will be almost solely dedicated to protecting our casino operation. We are currently engaged in strategic planning for its protection. We think our awareness campaign is critical and look forward to having a productive, open-door relationship with the new Governor, to strengthening our existing relationships and to making new friendships.

Sometimes tribal governments feel that they should focus their efforts only on the Reservation, but many outside decisions can affect the quality of life on the Reservation. I believe each tribal government should engage in an outreach program to promote understanding and to protect tribal sovereignty. The more we reach out to protect our first amendment and tribal and religious rights and to increase awareness, the more likely that the federal government will live up to its obligations and we can harmoniously and prosperously coexist with state and local governments.

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ON THE HILL

How a Bill Becomes Law

With the start of a new Congress, the Tribal Advocate thought it may be beneficial to review the basic process of how a bill becomes a law. The accompanying graph illustrates the lawmaking process as described below.

When a member of Congress introduces a bill, the parliamentarian and leadership of the receiving body refer the bill to the appropriate committee. Often, a bill can be referred to more than one committee (especially in the House). Committee staff refers the bill to a subcommittee, if appropriate.

Hearings can be held by either the subcommittee or the full committee. Usually the subcommittee is where the bill receives its most thorough consideration through the "mark-up" process where revisions and/or additions are made. During the subcommittee markup, the subcommittee can make amendments to the bill by majority vote and then report it to the committee. On occasion a bill will not be marked up by a subcommittee but will move directly to committee. The committee can pass the bill by majority vote (with or without amendment) and report the bill to the full chamber, often with a written report accompanying the bill.

In the House, once a bill is reported out of committee, it is referred to the rules committee, where a procedural rule is crafted for the bill's handling on the floor. The rule usually sets a maximum time for debate and limits the total number of amendments that can be offered. The Senate has no such equivalent limit on debate or amendments. As a result, senators who oppose legislation can offer endless amendments or filibuster in an effort to kill the bill. The only means to defeat a filibuster or another delaying tactic is a cloture vote, which will limit further debate on the bill. The cloture vote requires a three-fifths majority of Senators.

Absent any delaying tactics on the floor, amendments are offered, motions are made, and the bill is ultimately passed or rejected. If the House or Senate passes the bill, it then moves to the other chamber where it is referred to a committee and, if appropriate, a subcommittee. The opposite chamber's committee then goes through the hearing, markup, and floor process. If the bill does not get amended by the other chamber and passes in its original form, the bill can be presented to the President. However, if the bill is amended by the other chamber and the final bill is different from the final bill as passed in the original chamber, a conference committee is formed. Conferees from each chamber are then selected and meet to work out any necessary compromises between the House and Senate versions of the bill. The conference committee then files a conference report. Final passage comes when the House and Senate both approve the conference report. Of course, by simple inaction of a subcommittee, committee or either body of Congress, a bill can die.

However, if the bill gets through the legislative process, it is presented to the President. If the President signs the bill, it becomes law and is given a public law number. If he sends it back unsigned to the originating chamber and notes his objections, the bill has been vetoed. Only a two-thirds majority roll-call vote in both the House and Senate can override a Presidential veto. (For a more detailed description of the legislative process, visit our Publications page at pmplawfirm.com and click on the Tribal Advocate Links)


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INDIAN HEALTH

Indian Health Service Holds Level of Need Funding Workgroup Regional Consultation in Washington, D.C.

On January 9 and 10, 2001, the Indian Health Service held a consultation in Washington, D.C. to address the distribution of some $40 million in Indian Health Care Improvement Funds ("IHCIF"). The purpose of the consultation was to allow tribes to make comments and suggestions to the Level of Need Funding ("LNF") Workgroup for the distribution of these funds.

The LNF Workgroup is a joint tribal-IHS committee that was formed for the purpose of developing a methodology for the distribution of IHCIF that takes into account the ideas and opinions of tribes. The D.C. consultation was the last of three consultations held in different areas of the United States. A National Consultation Meeting will be held in Albuquerque, New Mexico the week of March 5, 2001. The following topics will be addressed during the week-long meeting: March 5, Contract Support Costs; March 6-7, LNF; March 8-9, Contract Health Services.

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FEDERAL

Temporary Rule Issued for Distribution of IRR Funds

On January 9, 2001, the Department of the Interior, Bureau of Indian Affairs ("BIA"), issued a temporary rule requiring the distribution of 75% of fiscal year 2001 Indian Reservation Roads funds. These funds are to be distributed to projects on or near Indian reservations using the relative need formula. The temporary rule also provides for the reservation of funds to allow federally-recognized tribes to apply for up to $35,000 for administrative capacity building and other eligible transportation activities for fiscal year 2001. The remaining 25% of the funds will be distributed under the same relative need formula as the initial 75%, after all comments to the temporary rule have been reviewed and any necessary changes to the distribution are made. The deadline for submitting comments is February 8, 2001.

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Ask the Advocate

On December 29, 2000, President-elect George Bush nominated Gale Norton to become the next Secretary of the Interior. The Tribal Advocate has received several inquiries regarding Ms. Norton, especially in light of the controversies surrounding her nomination.


Q. Who is Gale Norton and what is her general background?

A. A graduate of the University of Denver, Ms. Norton started her career in 1979 as a staffer at the Mountain States Legal Foundation, whose alumni include President Reagan's Secretary of Interior James Watt and Ann Gorsuch, President Reagan's EPA Administrator.

In 1983 Ms. Norton became a Scholar at Stanford University's conservative Hoover Institute, where she supported the idea of market incentives as a way to control air pollution. In 1985, after Secretary Watt resigned, Ms. Norton was appointed associate solicitor at the Department of the Interior, where she worked to open the Arctic National Wildlife to oil drilling. She then became a fellow at the Pacific Research Institute, a conservative think tank that has argued against legislation restricting urban sprawl.

In 1991, Ms. Norton was elected to be attorney general for the state of Colorado and was then re-elected four years later. During her tenure as attorney general, Ms. Norton is credited with helping to settle the water claims of two Colorado tribes. In 1999, she joined the Denver law firm of Brownstein, Hyatt, Farber and Strickland and was hired by the Alaska Legislature to appeal the Katie John Decision, a ruling by the U.S. Court of Appeals which allowed the federal government to manage much of Alaska. The appeal that Ms. Norton worked on, angered many Native Americans.

Ms. Norton is a member of the Legal Advisory Council for Defenders of Property Rights and of the Farm Credit Bank Property Rights Task Force. She has also been the national chairman of the Coalition for Republican Environmental Advocates whose steering committee includes registered lobbyists for the oil, auto, mining, and alcoholic beverage industries.

As of the date the Tribal Advocate went to publication, Ms. Norton's confirmation hearings were in progress. The Tribal Advocate will provide updates on Ms. Norton's confirmation as they become available.
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