Federal American Federal American Indian and Alaska Indian and Alaska

Native PolicyNative Policy––

A Pitched BattleA Pitched BattleAlaska Federation of NativesAlaska Federation of Natives

Annual ConventionAnnual ConventionOctober 24, 2013October 24, 2013Gregory A. SmithGregory A. Smith

Hobbs Straus Dean & Walker LLPHobbs Straus Dean & Walker LLP

A Pitched BattleA Pitched Battle

VictoriesVictories

Restoration of Indian Title including Alaska Restoration of Indian Title including Alaska Native program Native program (Title VII) to House (Title VII) to House Elementary and Secondary Education Elementary and Secondary Education Reauthorization ActReauthorization Act

VAWA Tribal Criminal ProvisionVAWA Tribal Criminal Provision Partially Overturns Oliphant CasePartially Overturns Oliphant Case

Stafford Act – FEMA Tribal Request ProvisionStafford Act – FEMA Tribal Request Provision Cuts the State out of the ProcessCuts the State out of the Process Greatly accelerated the delivery of Federal Greatly accelerated the delivery of Federal

assistanceassistance

AttacksAttacks

Sequestration and BudgetSequestration and Budget Courts Courts

ICWA – Baby VeronicaICWA – Baby Veronica Bay Mills Sovereign ImmunityBay Mills Sovereign Immunity Carcieri/PatchakCarcieri/Patchak

Tax AuditsTax Audits

Robert McNamaraRobert McNamara“Empathize with Your “Empathize with Your

Enemy”Enemy”

Grade Level of Grade Level of Congressional SpeechesCongressional Speeches

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

PizarroPizarro

““Pocahontas” - A Pocahontas” - A Contemporary of Contemporary of

ShakespeareShakespeare

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.

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.)

Vts_08_1.wmv

No Reservations: The Case No Reservations: The Case for Dismantling the Indian for Dismantling the Indian

BureaucracyBureaucracy ““Abolish the Bureau of Indian Affairs, Abolish the Bureau of Indian Affairs,

the Indian Health Service and all the Indian Health Service and all other federal agencies that serve other federal agencies that serve Native American interests …. Native American interests …. Lawmakers also ought to end the Lawmakers also ought to end the practice of formal tribal recognition.”practice of formal tribal recognition.”

Carl Horowitz, National Legal and Carl Horowitz, National Legal and Policy Center, February 4, 2011, Policy Center, February 4, 2011, townhall.comtownhall.com

Senator Paul RandSenator Paul Rand S.162 -- Cut Federal Spending Act of 2011 (Placed on Calendar Senate - S.162 -- Cut Federal Spending Act of 2011 (Placed on Calendar Senate -

PCS)PCS) Mr. PAUL introduced the following bill; which was read the first time 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 Be it enacted by the Senate and House of Representatives of the United States of

America in Congress assembled,America in Congress assembled, SEC. 7. EDUCATION.SEC. 7. EDUCATION. All Department of Education programs are defunded effective on the date of 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 enactment of this Act, except for the Pell grant program which shall be capped at $16,256,000,000.$16,256,000,000.

SEC. 9. HEALTH AND HUMAN SERVICES.SEC. 9. HEALTH AND HUMAN SERVICES. (a) (a) (3) INDIAN HEALTH SERVICE- Amounts made available to the Indian Health (3) INDIAN HEALTH SERVICE- Amounts made available to the Indian Health

Service for fiscal year 2011 are reduced by $650,000,000.Service for fiscal year 2011 are reduced by $650,000,000. SEC. 11. HOUSING AND URBAN DEVELOPMENT.SEC. 11. HOUSING AND URBAN DEVELOPMENT. (a) Defunding- Except as provided in subsection (b), all accounts and programs of (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 the Department of Housing and Urban Development are defunded effective on the date of enactment of this Act.date of enactment of this Act.

(b) Transfer- Effective on the date of enactment of this Act, Veteran housing (b) Transfer- Effective on the date of enactment of this Act, Veteran housing programs administered by the Department of Housing and Urban Development programs administered by the Department of Housing and Urban Development are transferred to Department of Veterans' Affairs.are transferred to Department of Veterans' Affairs.

SEC. 12. INTERIOR.SEC. 12. INTERIOR. (5) REPEAL- All accounts and programs of the Bureau of Indian Affairs are (5) REPEAL- All accounts and programs of the Bureau of Indian Affairs are

defunded effective on the date of enactment of this Act.defunded effective on the date of enactment of this Act.

Carcieri v. SalazarCarcieri v. Salazar

Can you take land into trust?Can you take land into trust? Was the Tribe “under Federal Was the Tribe “under Federal

jurisdiction” in 1934jurisdiction” in 1934 What does this mean?What does this mean? How does this involve Alaska How does this involve Alaska

Natives?Natives?

Carcieri is a “divide and Carcieri is a “divide and conquer” triumph for the Statesconquer” triumph for the States

Two Classes of Tribes Two Classes of Tribes Diminishes both the Trust Diminishes both the Trust Responsibility and the Govt to Responsibility and the Govt to Govt RelationshipGovt Relationship

Carcieri was about Carcieri was about housinghousing

Congressman Cole (R-Congressman Cole (R-OK)OK)

12.08.2010.Cole House Debate.wmv

Sovereignty and the Sovereignty and the ConstitutionConstitution

Vts_02_1.wmv

Violence Against Women Violence Against Women ActAct

Greatest lobbying triumph for Indian Greatest lobbying triumph for Indian Country in decadesCountry in decades

Tremendous resistance . . . On allegedly Tremendous resistance . . . On allegedly constitutional grounds: Senator Kyl: constitutional grounds: Senator Kyl: "by "by subjecting individuals to the criminal subjecting individuals to the criminal jurisdiction of a government from which jurisdiction of a government from which they are excluded on account of race," they are excluded on account of race," the the tribal jurisdiction provision tribal jurisdiction provision "would quite "would quite plainly violate the Constitution’s guarantees plainly violate the Constitution’s guarantees of Equal Protection and Due Process." of Equal Protection and Due Process."

Sen. Kyl’s View is part of Sen. Kyl’s View is part of a broader attack on the a broader attack on the

constitutionality of constitutionality of federal Indian lawsfederal Indian laws

Senate Indian Affairs Senate Indian Affairs Committee “No” Votes – Committee “No” Votes –

A Different View of Tribal A Different View of Tribal SovereigntySovereignty

Senator John BarrassoSenator John Barrasso Senator John McCainSenator John McCain Senator John HoevenSenator John Hoeven Senator Deb FischerSenator Deb Fischer

U.S. Supreme CourtU.S. Supreme Court

Adoptive Couple v. Baby Adoptive Couple v. Baby GirlGirl

Challenge to Indian Child Welfare Challenge to Indian Child Welfare Act (ICWA)Act (ICWA)

Constitutional ArgumentsConstitutional Arguments Same lawyer as in KG Urban caseSame lawyer as in KG Urban case

VeronicaVeronica

Bay Mills CaseBay Mills Case

To be Argued December 2, 2013To be Argued December 2, 2013 Scope of Tribal Sovereign Immunity Scope of Tribal Sovereign Immunity

at Issueat Issue

U.S. v. Lara, April 19, U.S. v. Lara, April 19, 20042004

Justice Thomas: Justice Thomas: “… the time has come to “… the time has come to reexamine the premises and logic of our tribal reexamine the premises and logic of our tribal sovereignty cases … In my view, the tribes either sovereignty cases … In my view, the tribes either are or are not separate sovereigns, and our are or are not separate sovereigns, and our federal Indian law cases untenably hold both federal Indian law cases untenably hold both positions simultaneously.”positions simultaneously.”

““I do not necessarily agree that the tribes have I do not necessarily agree that the tribes have any residual inherent sovereignty…”any residual inherent sovereignty…”

““I cannot agree that the Indian Commerce I cannot agree that the Indian Commerce Clause provides Congress with plenary power to Clause provides Congress with plenary power to legislate in the field of Indian affairs . . . And I legislate in the field of Indian affairs . . . And I would be willing to revisit the question.”would be willing to revisit the question.”

How do you eat an How do you eat an elephant?elephant?

Enemies of Indian Country consider Enemies of Indian Country consider the elephant to be:the elephant to be: Tribal SovereigntyTribal Sovereignty Federal Trust Responsibility to TribesFederal Trust Responsibility to Tribes Land into Trust ProcessLand into Trust Process

Federal Budget - Hard Federal Budget - Hard FactsFacts

At least one-third of all Federal At least one-third of all Federal spending is funded through spending is funded through borrowing.borrowing.

Federal funding is a major Federal funding is a major manifestation of the trust manifestation of the trust responsibility.responsibility.

51

Federal Revenues Will Be Inadequate In Coming Decades

Source: CBPP projections based on CBO data

If Bush Tax Cuts had If Bush Tax Cuts had ExpiredExpired

What About the Indian What About the Indian Health Service?Health Service?

Should be no sequestration in FY Should be no sequestration in FY 2014,2014,

But will that make a difference?But will that make a difference?

Tribal Leaders Defy Tribal Leaders Defy “Progress of Civilization” “Progress of Civilization”

TympanumTympanum

Gregory A. SmithGregory A. SmithHobbs Straus Dean & Hobbs Straus Dean &

WalkerWalkerWashington, DCWashington, DC

Tel: 202-822-8282Tel: 202-822-8282Email: Email:

gsmith@hobbsstraus.comgsmith@hobbsstraus.com