The danger of legislating on appropriations

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Legislating on appropriations is a sneaky little practice commonly used by both chambers of Congress. The tactic is employed for good and for ill, for emergencies where the normal authorizing process takes too long and for pork-plus, a favor for favored agencies or constituents.

There would be more legislating on the money bills if members of authorizing committees cared less about their job, which is to craft legislative policy. Usually, appropriators craft law when authorizers concur in the purpose or agree to look the other way.

When appropriators make federal Indian law, the result is more harmful than helpful to Native Peoples, no matter how well intended. Even when used to benefit Indians, the practice of legislating on appropriations is fraught with danger, because of the lack of deliberation on the complex details that determine the extent of Indian rights.

Two-thirds of the House members decided on July 17 they didn't want to make or tinker with federal Indian law on appropriations and rejected two provisions of the Interior appropriations bill. One would have changed the accounting rules to let the Interior Department off the hook in the ongoing trust funds litigation. The other would have made mischief for tribal gaming and recognition processes in the guise of another study commission.

It's supposed to be against the House and Senate rules to legislate on appropriations. The problem is that there are so many rules the legislators can do anything, including suspending any rule they have the votes to ignore.

Legislating on appropriations is often a secret procedure until the bill is out of committee and considered a done deal. Even when the procedure is not a secret, the appropriations panels bury the one-liners in myriad pages of numbers and instructions.

Sometimes, it is next to impossible to obtain a copy of appropriations bills before they are taken up on the House and Senate floors. It is not unheard of for members of Congress to vote on funding bills they haven't read or even seen.

These legislative provisions in money bills usually begin, "Notwithstanding any other provision of law, no funds appropriated under this act may be used for the following purpose." They also are stated in the obverse, that funds must be used for a specific purpose.

This sounds harmless enough, but some of these one-liners have had injurious, lasting consequences for Native Peoples. These substantive law provisions ? called riders or amendments when they are added on the House or Senate floors after the appropriations panels have recommended their full bills ? are supposed to last for only one year, the life of the appropriations bills.

Most Indian-related appropriations riders outlast the appropriations act they rode in on. Congress in effect ended Indian treaty-making in 1871 through an appropriations provision. It had less to do with Indian treaty-making ? in fact, federal Indian treaties were made into the early 1900s ? than with congressional turf politics.

House members wanted in on the power that senators enjoyed when approving Indian treaties and added language to the Indian appropriations bill that stopped single-house treaty-making with Indian nations. In other words, the Senate could continue to make Indian treaties, but only with House concurrence. Senate appropriators did not wage battle against the House, possibly on the theory that any funding restriction or condition would expire at the end of the appropriations cycle.

Many federal-tribal treaties after 1871 were simply called federal Indian laws, even though they were new treaties and treaty adjustments.

A once-powerful chairman of the Senate appropriations committee in the first half of the 1900s didn't like Indian water rights cases being adjudicated in federal courts and wanted them decided in state courts. He wasn't getting very far through the legislative route.

The states ? which the Supreme Court characterized as the deadliest enemies of the Indians, because they are the most immediate competitors for Indian resources ? were the main parties against Indian nations in water rights cases and the state courts were rightly viewed as less than impartial.

The chairman crafted an appropriations provision allowing Indian water cases to be tried in whichever forum, federal or state court, where a party filed first. This created a race to the courthouse, causing premature filing of some cases and subsequent disadvantage to Indians in court.

In the current appropriations maneuvers, the top "cardinals" on Interior appropriations, Reps. Joe Skeen, R-N.M., and Norman D. Dicks, D-Wash., favored the trust funds and study language. Chairman Skeen is virtually incapacitated. His head appropriations staffer ? who wields more power than most appropriators do with an actual vote in Congress and who is not known for his Indian advocacy ? carried on the floor fight in the chairman's name.

Dicks fights his own battles, but didn't seem to have his heart in this one. He has much experience, both pro and con, with efforts to undermine ongoing litigation through appropriations.

Before Dicks became a House member in 1976, he was a top legislative staffer to Sen. Warren G. Magnuson, D-Wash., who chaired the appropriations committee. The Washington delegation banded together to end the treaty fishing rights case that the federal district court decided against their state and in favor of the Indians.

Just as the delegation was poised to use the appropriations process to achieve its goal, Sen. Henry M. Jackson, D-Wash., determined that courts likely would consider the maneuver an unconstitutional taking of Indian fishing rights, which could cost the federal government billions of dollars in Fifth Amendment compensation to tribes and Indians.

The two Washington senators went from pushing a quick and dirty fix on a funding bill to defending the orderly legal process in the treaty fishing lawsuit that culminated in the Supreme Court's 1979 decision for the Indian side.

During the late-1970s and early 1980s, congressional members from eastern states threatened to use the appropriations bills to wipe out the eastern Indian land claims by retroactively ratifying the illegal transactions through which their states had wrongly acquired Indian lands. When they realized the astronomical costs of the Fifth Amendment takings ? which are calculated with interest compounded daily from the date of the original taking ? most members of the eastern states' delegations shifted their efforts in the direction of negotiated settlements.

The elephant on the House floor on July 17 was the potential value of the unconstitutional takings claims that would have arisen from dropping a century of claims from the trust funds case. Some members appreciated that the high cost of going ahead with the case ? the ostensible reason for limiting the accounting from the 1887 date, which was set by Congress itself, to 1985 ? paled in comparison to the cost of an unconstitutional property-takings case.

Congressional appropriators in the past have trampled over Indian religious freedom and endangered species laws so the Tennessee Valley Authority could build Tellico Dam. They knew they were flooding a traditional Cherokee burial ground and possibly driving the tiny snail darter to extinction, but they went for the project anyway, fish and dead Indians be dammed.

By using the appropriations process from the 1990s to the present, the Oklahoma delegation has succeeded in keeping the Cheyenne and Arapaho Tribes from their treaty-guaranteed Fort Reno lands. Why? Because the rich Anadarko oil basin lies beneath them. Appropriators simply do the delegation the favor of adding a sentence to the Agriculture appropriations bill, prohibiting the Tribes from using existing law that is available to everyone else in America.

The real danger of legislating on appropriations is that Congress uses all its might to do the will of what is ordinarily a very small group of its 535 members, without giving the affected Native Peoples a chance to be heard on the subject. This degrades the process and dishonors the members of Congress who stand by while a few of their own crush Indian rights and people.

House members have every right to congratulate themselves for doing their duty on July 17.

They also should ask themselves what they were doing not so long ago when the Arizona delegation secured appropriations riders to build telescopes on Mount Graham, without so much as asking the Apache Peoples what they thought about the desecration and damage to their most sacred place.

Members of Congress should ask what else is being done in their names on the money bills and should question whether legislating on appropriations is a fair and proper way to exercise their fiduciary duties to Native Americans.

Suzan Shown Harjo, Cheyenne and Hodulgee Muscogee, is president of the Morning Star Institute in Washington, D.C., and a columnist for Indian Country Today.