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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 12-080

General Memorandum 12-080
House Approves National Security and Federal Lands Protection Act As Part of a Larger Bill

On June 19, 2012, the House of Representatives passed HR 2578, the Conservation and Economic Growth Act, in a 232-188 vote largely along party lines. HR 2578 includes the text of HR 1505, the National Security and Federal Lands Protection Act, sponsored by Representative Bishop (R-UT), which would grant broad and controversial authority to the U.S. Customs and Border Protection agency on federal lands within 100 miles of the international land borders of the United States. Specifically, the National Security and Federal Lands Protection bill would:

• Prohibit the Secretary of the Interior and the Secretary of Agriculture from impeding, prohibiting, or restricting activities of U.S. Customs and Border Protection to "prevent all unlawful entries into the United States" on land under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture within 100 miles of the land borders

• Authorize U.S. Customs and Border Protection to have "access to federal land under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture" for the construction and maintenance of roads and fences; use of patrol vehicles and aircraft; installation, maintenance, and operation of surveillance equipment and sensors; and deployment of temporary tactical infrastructure, including forward operating bases and

• Waive the application of 16 environmental laws on "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" for the same activities.

As introduced, HR 1505 would have waived 36 environmental and historic preservation laws, but an amendment offered by Representative Bishop to narrow the list of laws that would be waived to 16 was accepted by voice vote on the House floor.

Representative Bishop's amendment did not add an exception for tribal lands but did add a provision stating that "Nothing in this section supersedes, replaces, negates, or diminishes treaties or other agreements between the United States and Indian tribes." It is unclear what impact the amendment would have, but it appears that the bill would still largely apply to tribal lands within 100 miles of an international border. Sacred places or other areas of cultural significance located on non-tribal federal lands within 100 miles of a border would also be included within the reach of HR 2578. If it becomes law, HR 2578 would therefore have at least two potentially significant impacts on tribes with lands or sacred places within 100 miles of a border: first, tribes would presumably be required to allow U.S. Customs and Border Protection to gain access to their lands for the purposes listed above. Second, the 16 environmental laws listed in HR 2578 would not apply to the actions taken by U.S. Customs and Border Protection on those lands. The National Congress of American Indians and the United South and Eastern Tribes oppose the bill on these grounds.

An amendment to strike the HR 1505 language in its entirety from HR 2578, offered by Representative Grijalva (D-AZ), was defeated on the House floor.

HR 2578 was referred to the Senate on June 20, 2012, and has been referred to the Senate Committee on Energy and Natural Resources. Please let us know if we may provide additional information on the National Security and Federal Lands Protection Act as included in HR 2578.

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Inquiries may be directed to:
Caroline Mayhew (cmayhew@hobbsstraus.com)
Michael Roy (mroy@hobbsstraus.com)

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