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Getting Ready for January: Notes on the 117th Congress

The next time you walk through the doors at 1849 C Street, NW, the portrait above the security desk may well feature the first Native American Secretary of the Interior. As has been widely reported, Congresswoman Deb Haaland (D-NM-01) and former Interior Deputy Secretary Michael Connor are among several Native American candidates currently being vetted for the position.

As President-elect Joe Biden prepares to take the helm on January 20, his transition team is identifying landing teams, political nominees, policy agendas, and management plans for early action. For Indian Country, the Biden Campaign’s Plan for Tribal Nations serves as a useful framework for early action, with public safety and justice, infrastructure, access to capital, federal procurement, clean energy, climate change, environmental justice, land into trust, and conservation all featured prominently.

But beyond the campaign promises, the Biden administration’s policy for Indian Country will be heavily influenced by the actions (or inaction) of the 117th Congress.

The 117th Congress will play a central role in vetting and confirming the new administration’s key political nominees and enacting or rejecting legislative initiatives that will advance or undermine the administration’s Plan for Tribal Nations. This article therefore provides a preliminary look at the 117th Congress and identifies just a few of the Members who are likely to influence legal and policy developments in Indian Country for the next two years.

When the 117th Congress kicks off in early January, the U.S. Senate will be divided 48-50 in favor of the Republican party. The ultimate balance of power in the Senate for the 117th Congress hinges on two run-off races in Georgia scheduled for January 5.

If Republicans win just one of the two Georgia elections, they will retain control of the Senate. Intensive campaigning, high profile advocates, and record-breaking campaign spending will influence these key contests.

The results of the Georgia election will have immediate consequences for the Biden administration. The Biden team will need to fill thousands of presidential appointments during the opening months of the new administration, at least 1,200 of which will require Senate confirmation. As a result of changes made in 2013 to the rules of the Senate, the President’s nominations are not subject to the filibuster. Still, a majority of Senators must confirm each nomination, and a Republican-led Senate—and a Republican-led Judiciary Committee—could have significant influence on the composition of the administration’s political leadership team.

The Georgia run-off also will determine who will lead Senate committees with jurisdiction over issues of importance to Indian Country. In particular, if Republicans retain the majority, Sen. Lisa Murkowski (R-AK) is expected to take over as Chair of the Senate Committee on Indian Affairs. Senator Brian Schatz (D-HI) likely would become Vice Chair.

The Indian Affairs Committee is generally known for taking a bipartisan approach to legislation, and Sens. Murkowski and Schatz would be expected to carry on this tradition. The senators have a shared interest in addressing a wide range of unique legal and policy challenges that affect Indigenous communities within the noncontiguous states they represent. (Former Hawaii Senators Daniel Inouye (D-HI) and Daniel Akaka (D-HI) both served as Chairmen of the Committee, with Senator Inouye serving as Chair for a combined total of five Congresses. The Committee has never been chaired by an Alaskan.)

During the 116th Congress, Senators Murkowski and Schatz demonstrated their interest in working together to advance bipartisan solutions for Indian Country, for example, through their introduction—along with Senators Mazie Hirono (D-HI) and Dan Sullivan (R-AK)—of the INVEST Act, which would create a set aside within the New Markets Tax Credit program for Native American communities. Senators Murkowski and Schatz both sit on the Senate Committee on Appropriations, and Senator Murkowski currently chairs the Senate Appropriations Subcommittee on Interior, Environment, and Related Agencies, with jurisdiction over spending for the Bureau of Indian Affairs, Indian Health Service, and other key agencies.

In the U.S. House of Representatives, although Democrats will retain a slim majority in the 117th Congress, with Republicans successfully flipping several seats from blue to red. Democrats may hold just 222 seats when the new Congress convenes, a number that could diminish further (if only temporarily) if Members leave to join the Biden administration. With 218 votes needed to pass a bill in the House, legislative initiatives (including spending bills) that cannot gain consensus within the House Democratic Caucus will require some level of bipartisanship to move forward.

Congressman Raúl Grijalva (D-AZ-03) will continue to serve as Chairman of the House Committee on Natural Resources, with jurisdiction over a wide range of legislation for Indian Country. We expect Congressman Ruben Gallego (D-AZ-07) to continue to serve as Chairman of the Committee’s Subcommittee for Indigenous Peoples of the United States.

A record number of Native American representatives—three Republicans and three Democrats—will serve in the 117th Congress. Congressman Tom Cole (R-OK-04), an enrolled member of the Chickasaw Nation, will start his 10th term. Congressman Cole sits on several key committees, including the House Committees on Appropriations, Budget, and Ways and Means. Congressman Markwayne Mullin (R-OK-02), an enrolled member of the Cherokee Nation, will start his 5th term in the House. He sits on the House Committees on Natural Resources (including the Subcommittee for Indigenous Peoples of the United States) and Transportation and Infrastructure.

Joining the two Oklahoma Republicans, Yvette Herrell defeated incumbent Xochitl Torres Small and will serve as the Congresswoman for New Mexico’s second Congressional district. Herrell, an enrolled member of the Cherokee Nation, was previously elected to the New Mexico state House in 2010, where she largely focused on public safety and support for small businesses, drawing on her previous experience as an entrepreneur and real estate agent.

Congresswomen Sharice Davids (D-KS-03) and Deb Haaland, who made history two years ago as the first Native American women to be elected to Congress, both return for second terms.

Congresswoman Davids, an enrolled member of the HoChunk Nation of Wisconsin, serves on the House Committee on Small Business, where she has been a strong advocate for Native small business, as well as the Committee on Transportation and Infrastructure.

Congresswoman Haaland, an enrolled member of the Pueblo of Laguna, serves on the House Committees on Armed Services, Natural Resources (including the Subcommittee for Indigenous Peoples of the United States), and Oversight and Reform.  Congresswoman Haaland and Congressman Cole currently serve as co-chairs of the Congressional Native American Caucus.

Congresswoman Haaland is one of a handful of candidates reportedly under consideration by the Biden transition team for possible nomination to be Secretary of the Interior. Her nomination has received support from various sources, including from Chairman Grijalva, whose name also had been circulated for the position.  Congressman Grijalva signaled some time ago that he was no longer interested in the role and urged fellow committee members to support Congresswoman Haaland, stating, “It is well past time that an Indigenous person brings history full circle at the Department of Interior.”

From Hawaii, Democrat Kaiali’i Kahele will become the second Native Hawaiian to represent his state in Congress. A combat veteran and commercial airline pilot, Mr. Kahele entered Hawaii state politics in 2016, when he was appointed to the state Senate by Governor David Ige to replace his father, Gil Kahele, who passed away that year. He was reelected twice to the state legislature and recently served as the majority floor leader, largely focusing his legislative efforts on the economic development of Hilo and East Hawaii.

Broadly speaking, we expect issues of importance for Indian Country in the 117th Congress to include the following: public safety and justice (in part, through reauthorization of the Violence Against Women Act and enactment of new language defining special tribal criminal jurisdiction); infrastructure (including tribal transportation reform, broadband funding, and equitable access to water infrastructure funding, an ongoing issue highlighted by the ongoing COVID-19 pandemic); and Native contracting and procurement. All of these issues received some attention during the 116th Congress, but relatively little was accomplished. All of these issues overlap broadly with many of the priorities listed by the Biden team in its Plan for Tribal Nations.

In addition, several pending tribal tax reform initiatives likely will remain at the forefront, particularly if a subset of these legislative priorities do not advance as part of a tax extenders bill in the final days of the 116th Congress.

National Congress of American Indians and Native American Finance Officers Association are among the organizations pressing for legislation to address multiple tribal tax priorities, including efforts to: increase deployment of New Markets Tax Credits to Indian Country; increase the deployment of low income housing tax credits to Indian Country; increase the Indian employment tax credit; clarify the public charity status of organizations that support Indian tribes; empower Indian tribes to utilize tax-exempt debt; clarify whether certain employee benefit plans maintained by Indian tribes are subject to federal minimum standards for private benefit plans; and extend certain authorities to Indian tribes that would enable parents to ensure that adoptive parents of Native children are able to claim the adoption tax credit.

© 2021 Van Ness Feldman LLPNational Law Review, Volume X, Number 352
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About this Author

Andrew VanderJack Land Use Attorney Van Ness Feldman Law Firm
Partner

Andrew VanderJack's practice focuses on public lands and natural resource law and policy. Andrew provides counsel to clients on legislative and administrative matters involving Congress, congressional committees, federal agencies, state and local and tribal governments, special interest groups, and private parties. 

Andrew counsels both privately-owned and public entities, including state and local governments, Alaska Native corporations, non-profit organizations, and timber and mining companies on a variety of public land, energy, and natural resources issues. Through this...

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