What Tribes Need to Know About the Changed Legal Landscape in 2021
By Procopio Associate Gabriela Magee
2020 was a year like no other. Many parts of our everyday lives were put on hold, but Tribal governments displayed extraordinary resilience and quickly adapted to the changing environment. Procopio’s Native American Practice Group is proud of its role in serving tribal communities and ensuring that tribes have the tools they need to address the difficult challenges resulting from, and exacerbated by, the COVID-19 pandemic. The historical inequities facing tribal communities were laid bare during the pandemic as the health crisis disproportionately impacted tribal communities and left many tribes scrambling for resources.
We have summarized below some the new State and Federal laws and regulations that will impact tribal communities, businesses and governments in the new year, including Federal laws designed to improve economic development in Indian Country, address missing and murdered indigenous people, and State laws to strengthen existing repatriation laws. (Direct links to these laws are available by clicking the titles to each section.)
The Practical Reforms and Other Goals To Reinforce the Effectiveness of Self-Governance and Self-Determination for Indian Tribes Act of 2019, or the PROGRESS Act, was signed into law on October 21, 2020. The PROGRESS Act amends the Indian Self-Determination and Education Assistance Act of 1975 to align the Department of the Interior's process for approving self-governance compacts with that of the Department of Health and Human Services. The amendments are intended to streamline the process for tribes and tribal organizations to obtain self-governance contracts with the Department of the Interior.
Tribal communities have long faced disproportionate rates of violence within their communities, specifically with respect to violent crimes perpetuated against Native American women. Two pieces of Federal legislation were enacted in 2020 to coordinate Federal resources to address this epidemic: The Not Invisible Act of 2019 and the Savanna's Act.
The Not Invisible Act creates a coordinator within the Bureau of Indian Affairs to:
- Coordinate prevention efforts, grants, and programs related to the murder of, trafficking of, and missing Indians across Federal agencies;
- Address unique challenges of combating human crime, violence and human trafficking in Indian Country and in tribal communities; and
- Work with tribes to provide culturally-relevant services to victims of violence.
The BIA coordinator is also required to report to the Committee on Indian Affairs and the Committee on the Judiciary of the Senate and the Committee on Natural Resources and the Committee on the Judiciary of the House of Representatives on the previous years' coordination efforts.
The Not Invisible Act also creates a joint commission on violent crime on Indian lands and against Indians. The Commission is required to, among other duties, develop recommendations for the Secretary of the Interior and Attorney General on actions the Federal government can take to help combat violent crime against Indians within Indian lands.
The Savanna's Act directs the Department of Justice to develop protocols to address missing and murdered Native Americans, and requires the Department of Justice to:
- Provide training to law enforcement agencies on how to record tribal enrollment for victims in Federal databases;
- Develop and implement a strategy to educate the public on the National Missing and Unidentified Persons System;
- Conduct specific outreach to tribes, tribal organizations, and urban Indian organizations regarding the ability to publicly enter information through the National Missing and Unidentified Persons System or other non-law enforcement sensitive portal;
- Develop regionally appropriate guidelines for response to cases of missing or murdered Native Americans;
- Provide training and technical assistance to tribes and law enforcement agencies for implementation of the developed guidelines; and
- Report statistics on missing or murdered Native Americans.
Savanna's Act also provides grant opportunities for tribes for purposes of developing policies and procedures for law enforcement regarding missing or murdered Native Americans, and compiling data related to missing and murdered Native Americans.
The Indian Community Economic Enhancement Act of 2020 amends the Native American Business Development, Trade Promotion, and Tourism Act of 2000, the Buy Indian Act, and the Native American Programs Act of 1974 to incentivize and facilitate economic development and job creation in Indian Country, including:
- Requiring the Department of Health and Human Services to use Native American labor and purchase Native American industry products;
- Authorizing the Administration for Native Americans (ANA) to provide financial assistance to Native American community development financial institutions, with a focus on those programs seeking to develop: (a) tribal codes and court systems relating to economic development, (b) tribal business structures, (c) community development financial institutions, or (d) tribal master plans for community and economic development and infrastructure.
The Indian Community Economic Enhancement Act of 2020 establishes the Office for Native American Business Development, which will serve as the point of contact for tribes, tribal organizations, and members of tribes regarding economic development and doing business in Indian Country. The Act also requires the Government Accountability Office to conduct a study that assesses: (a) current programs and services that assist Native American communities with business and economic development; (b) assistance provided to Native Americans pursuant to loan, bond, and tax incentive programs; and (c) alternative incentives for tribal governments to invest in a Native American community development investment fund or bank.
The Bureau of Indian Affairs published two rules in 2020 to remove burdensome requirements with respect to the inventory or proposed roads in the National Tribal Transportation Facility Inventory (NTFFI) and to improve the minimum standards of character applicable to the care of Indian children.
The Bureau of Indian Affairs finalized a rule to amend 25 C.F.R. 170.443 to remove the requirement for tribes to collect and submit certain data to keep proposed roads in the NTFFI. The new rule applies to proposed roads that were included in the NTFFI as of November 7, 2016.
The Indian Child Protection and Family Violence Prevention Act, in part, was enacted to ensure individuals employed in positions that involve regular contact with, or control over, Indian children meet certain minimum standards of character. The Indian Child Protection and Family Violence Prevention Act, which has since been amended, included an overly broad prohibition that prevented individuals with a single misdemeanor offense involving certain crimes from employment involving contact with, or control over children. The Bureau of Indian Affairs finalized an amendment to 25 C.F.R. Part 63 to align the regulations with the current requirements for minimum standards of character under the Indian Child Protection and Family Violence Prevention Act. The new rule also clarifies that all convictions or pleas of nolo contendere or guilty should be considered in making a determination, except in certain circumstances.
Effective November 13, 2020, the National Indian Gaming Commission will increase the fingerprint processing fee to $45 per card, nearly doubling the fee from last year. The NIGC is basing this increase on the need to update the NIGC’s fingerprint system and network (equipment cost) and other measures to ensure compliance with Federal Bureau of Investigation requirements.
California State Assemblymember James Ramos was able to pass two important pieces of State legislation to address: (a) the failure of agencies and museums to facilitate repatriation of human remains and cultural items; (b) the inconsistent application of PL-280 in California Indian Country; and (c) issues involving missing and murdered Native Americans in California.
AB 275 amends the California Native American Graves Protection and Repatriation Act of 2001 to strengthen the requirements for agencies and museums that have possession or control over collections of California Native American human remains and associated funerary objects to inventory those remains and objects for repatriation to the appropriate California Indian tribe. AB 275 also requires consultation with California Indian tribes during the creation of such inventories, and revises the process by which a direct lineal descendant or a California Indian Tribe can request repatriation of human remains or cultural items. AB 275 also revised the definition of “California Indian tribe” to include both a tribe that meets the Federal definition of Indian tribe and a tribe that is not recognized by the Federal government, but that is a native tribe located in California that is on the list maintained by the Native American Heritage Commission.
AB 3099 requires the California Department of Justice to provide technical assistance to local law enforcement agencies that have Indian lands within or adjacent to their jurisdictions, and to tribal governments with Indian lands, including providing education and training. AB 3099 also requires the California Department of Justice to conduct a study to determine how to increase state criminal justice protective and investigative resources for reporting and identifying missing Native Americans in California, particularly women and girls.
Procopio's Native American Law Practice Group will continue to monitor legislative and regulatory changes in State and Federal law, and significant case law, to provide helpful information to assist tribal communities with the challenges in 2021. Please feel free to contact us or visit our blog at the Blogging Circle to learn more about the legislation and regulations discussed above and other developments in laws impacting tribal communities.
Gabriela Magee is an Associate at Procopio and a member of its Native American Law Practice Group. She focuses her practice on advising tribal clients on a variety of issues regarding governance, environmental permitting, gaming, intergovernmental agreements, and cultural resource protection and contracts. As an active member of her tribal government, Gabriela provides a unique perspective to client service in that she has reviewed, selected, and worked with firms for various consulting services for her tribe.