HR 1505 Passes; Tribal Borders and Treaties Await Senate
On Tuesday, June 19, the U.S. House of Representatives passed a broad land use bill called H.R. 2578 — “To amend the Wild and Scenic Rivers Act related to a segment of the Lower Merced River in California, and for other purposes,” also known as the Conservation and Economic Growth Act — in a 232-188 vote. And this legislation will affect Indian country; included in the 14-bill package on the House Floor was H.R. 1505, or the controversial National Security and Federal Lands Protection Act.
Authored by Rep. Rob Bishop (R-UT) and featuring 59 cosponsors from across the country, H.R. 1505 would give the Secretary of Homeland Security, through the U.S. Customs and Border Protection, the authority to take control of “all land under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture within 100 miles of the international land borders of the United States.”
“Securing our nation’s borders must be among our highest priorities," said Rep. Bishop, who also serves as House National Parks, Forests, and Public Lands Subcommittee chairman. "Right now, public lands inaccessible to the United States Border Patrol offer nearly unfettered safe harbor for criminal drug and human smugglers entering our country illegally. The Border Patrol must have improved access in order to deter and apprehend those using our federal lands as trafficking routes.
“The Border Patrol’s inability to routinely access the entire border region leaves us not only vulnerable to the trafficking of drugs but also (to) potential terrorists and others who wish to harm our country,” he added. “With the passage of this legislation, the Border Patrol will finally have the access necessary to help us achieve a truly secure border — a sovereign nation should have nothing less.”
To address concerns that the bill would give the federal government a broad new authority, the bill was amended in committee last fall to remove language that included maritime borders, add language to protect existing legal uses for recreational and economic activities, add a five-year sunset date to evaluate if the legislation should be renewed, and strictly limit the activities (six) for which the bill could be used. In fact, the committee changed all references to "The Secretary of Homeland Security" to "U.S. Customs and Border Protection" to emphasize that authority would be limited to border security operations and personnel.
Then, on the House Floor, Rep. Bishop introduced an amendment that clarified that federal land management agencies may not prohibit border patrol efforts to “prevent all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband through the international land borders of the United States.”
The amendment also narrowed the list of existing laws that may be waived by the U.S. Border Patrol from 36 to 16, prohibited any additional access to private property, confirmed that the Border Patrol will not reduce public access to federal land — for such uses as hunting, fishing and off-highway vehicle operation — and added a provision to “ensure and protect tribal sovereignty, stating that nothing in the bill may supersede, replace, negate, or diminish treaties or agreements with Indian tribes.”
However, according to Oliver “OJ” Semans, executive director of Four Directions, a nonpartisan get-out-the-native-vote organization based on South Dakota’s Rosebud Indian Reservation, the problem for Indian country is that the tribes whose lands lie within 100 miles of the Mexican and Canadian borders were never part of the legislative process — and the Department of Homeland Security, through U.S. Customs and Border Protection, would have jurisdiction for land use within the scope of those six authorized activities.
“The (author and) sponsors of H.R. 1505 want to give the U.S. Department of Homeland Security unprecedented power to build roads, fences, buildings or even watchtowers on public land administered by the departments of Interior and Agriculture,” Semans said. “This bill directly affects tribes, and they were never even consulted and/or asked to attend hearings on the bills.”
The text of the amended legislation reads, “The Secretary of the Interior or the Secretary of Agriculture shall not impede, prohibit or restrict activities of the U.S. Customs and Border Protection on land under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture to achieve operational control over the international land borders of the United States.” The six authorized activities include construction and maintenance of roads; construction and maintenance of fences; vehicle patrols; installation, maintenance and operation of surveillance equipment and sensors; use of aircraft; and deployment of temporary tactical infrastructure, including forward operating bases.
And while the legislation’s list of waived acts has been reduced from 36 to 16, restoring the Archaeological Resources Preservation Act of 1979, two critical laws are still able to be suspended: the National Historic Preservation Act and the Act of June 8, 1906 (also known as the Antiquities Act of 1906), which protect sites considered sacred to Native people.
“The real killer in the waivers is the Antiquities Act of 1906, which restricts the use of particular public land owned by the federal government (and) is used to protect tribal sacred sites,” Semans said. “(H.R. 1505) is a dangerous law for Indian sacred sites. I would love to see Congress include Mt. Rushmore in this legislation; at least then non-Indians would understand the unfairness of the bill.
“Removing the Archaeological Resources Protection Act from the waivers gives the appearance of addressing tribal concerns, but in fact, it makes the law nonexistent,” he continued. “The Secretary and government agency with the power to enforce the law no longer can, because Congress has restricted them from doing so.”
Affected tribes near the U.S.-Canada border include the Bay Mills Indian Community (Michigan), Blackfeet Tribe (Montana), Grand Portage Band of Chippewa (Minnesota), Red Lake Band of Chippewa (Minnesota), Sault Ste. Marie Chippewa Tribe (Michigan), St. Regis Mohawk Tribe (New York), Aroostook Band of Micmac (Maine), Bad River Band of Lake Superior Chippewa (Wisconsin), Boise Forte Band of Chippewa (Minnesota), Confederated Tribes of the Colville Reservation (Washington), Fort Belknap Indian Community (Montana), Fort Peck Assiniboine & Sioux Tribes (Montana), Houlton Band of Maliseet (Maine), Jamestown S’Klallam Tribe (Washington), Kalispel Tribe (Washington), Keweenaw Bay Indian Community (Michigan), Kootenai Tribe (Idaho), Lower Elwha Klallam Tribe (Washington), Lummi Nation (Washington), Makah Tribe (Washington), Nooksack Tribe (Washington), Passamaquoddy Tribe (Maine), Penobscot Nation (Maine), Red Cliff Band of Lake Superior Chippewa (Wisconsin), Seneca Nation (New York), Swinomish Tribe (Washington), Tonawanda Seneca Tribe (New York), Turtle Mountain Band of Chippewa (North Dakota), Tuscarora Nation (New York) and the Upper Skagit Tribe (Washington).
H.R. 1505 also affects a variety of tribes with land near the U.S.-Mexico border, including the Cocopah Tribe (Arizona), Kickapoo Tribe (Texas), Mescalero Apache Tribe (New Mexico), Pascua Yaqui Tribe (Arizona), Tohono O'odham Nation (Arizona) and the Quechuan Tribe (Arizona).
One of H.R. 1505’s most vocal opponents is Senator Jon Tester (D-MT). His state is home to several affected tribes, and he has expressed deep concern for the lack of consultation with tribes — and lack of public input altogether.
“H.R. 1505 contains specific language that allows one federal department ‘immediate’ and total control over public lands in Montana,” said Aaron Murphy, communications director at Montanans for Tester. “Jon is concerned by this irresponsible proposal because it undermines… tribal sovereignty with a one-size-fits-all big government strategy, allowing a handful of federal agents to do whatever they want with no public input and no public accountability. Those who support this bill failed to consult with tribes — or any Montanans for that matter. Any decisions that deal with public land should be made with public input.”
He added that Sen. Tester also is very concerned about the waiving of existing laws, which also include the Wilderness Act, the Endangered Species Act of 1973 and the Wild and Scenic Rivers Act, as well as those protections for antiquities and historic sites.
Murphy noted that, as written, the Department of Homeland Security — again, through the U.S. Customs and Border Protection — would not have to seek permission to do whatever is necessary to achieve “operational control” on any land administered by the Department of Agriculture or the Department of the Interior.
“There is no language that exempts lands administered by the Bureau of Indian Affairs,” he observed. “The House (committee) even rejected an amendment to specifically exempt tribal land from H.R. 1505. Jon believes we can protect our nation without trampling tribal rights.”
Sen. Tester isn’t the only one to express concern. According to testimony from the House hearing on H.R. 1505, the lead lawyer for the Department of the Interior under President Clinton also expressed serious concerns about the bill’s effects on tribal sovereignty.
What about the provision in Rep. Bishop’s amendment? Semans didn’t give it much weight, noting that the wording of the amendment does not exempt tribal land.
“It’s the standard double talk to say, see, we honor our treaties… all the while changing the treaties through legislation,” he commented. “This same language was used in the PACT Act and is currently in the STOP Act, and tribes end up spending millions in litigation.”
A fellow Montana legislator, Rep. Denny Rehberg (R-MT), is a co-sponsor of the bill and co-chair of the Congressional Northern Border Caucus. He proposed many of the changes that were incorporated into the current version of H.R. 1505, and he said the bill is a good one for Montana and the United States.
“Border security is national security, and in Montana that means safety for our families and communities,” Rep. Rehberg commented. “It’s time to put an end to the dangerous turf war where federal land managers hide behind environmental laws in order to prevent border patrol agents from doing their jobs on federal land.”
He also noted that the legislation is much more targeted than what he called “the sweeping measure” that unanimously passed the U.S. Senate in 2009.
“We built in protections for grazing rights and more narrowly focused the intent of the law on efforts to secure the border,” he explained. “We also added a sunset provision so the law can be reviewed by Congress to make sure it’s working as intended. This was a good bill, and now it’s even better.”
Is there a dangerous “turf war” between federal agencies? The Department of Homeland Security already has a memorandum of understanding with the departments of Interior and Agriculture that allows the departments to work together in a situation that might require DHS to pursue suspects or investigations on public land. And, according to a prominent Washington D.C. lobbyist who represents tribes across the country, there has been “no hue and cry” from the Border Patrol to take additional measures to guarantee access.
Tom Rodgers is president of Alexandria, Virginia-based Carlyle Consulting, and he is perhaps best known as the whistle-blower in the Jack Abramoff scandal. He also is a member of Montana’s Blackfeet Nation, and he said he questions the need for H.R. 1505 in the first place.
“I’ve seen the GAO report, and I’ve yet to see substantive arguments,” he commented. “I’m not convinced, and I’ve never heard of any tribe denying access to its land. I call this a weapon of mass distraction.”
Rodgers said he also finds it ironic that so many advocates of smaller government are behind this particular bill.
“There are so few resources, and there are so many other needs,” he said. “Without a demonstrable need, why give the Department of Homeland Security more authority? Why are we spending time and resources on this? It doesn’t make sense.”
Now that the House has approved it, however, H.R. 1505 will move on to the U.S. Senate.
“It’s unfortunate that certain members of the House refuse to acknowledge that Indian tribes are sovereign nations, designated so by treaties their ancestors signed,” Semans said. “They dishonor those before them in their passing of H.R. 2578 (and H.R. 1505).
“But the House’s action is far from over,” he emphasized. “Tribal leaders will meet with senators, as our treaties dictate, in nation-to-nation meetings to voice their concerns over Section 1401 of H.R. 2578.”
Members of affected tribes, and members of the general public who feel strongly about this issue, are encouraged to contact their senators to share their views.
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