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Our firm assisted a tribe in its successful effort to secure a Forest Service decision banning rock climbing on Cave Rock, a significant tribal cultural site, and filed an amicus brief in Access Fund v. U.S. Department of Agriculture in support of the Forest Service’s decision, which was upheld.

General Memorandum 16-062

General Memorandum 16-062
Commission on Native American Children Signed into Law

On October 14, 2016, President Obama signed S 246, the Alyce Spotted Bear and Walter Soboleff Commission on Native Children Act, into law. The Act authorizes the Alyce Spotted Bear and Walter Soboleff Commission (Commission), over a three-year period, to evaluate and make recommendations regarding ways to improve tribal, state, and federal programs affecting Native children. The title of the Act is a tribute to Alyce Spotted Bear, a former Chairwoman of the Mandan, Hidatsa, and Arika Nation and Walter Soboleff, a Tlingt elder statesman, scholar and religious leader. While the law provides that the Commission is to be located in the Office of Tribal Justice in the Department of Justice, the President's signing statement says that it will be considered an independent entity outside of the executive branch, explaining:
While I welcome the creation of this Commission, it cannot be located in the executive branch consistent with the separation of powers because it includes legislative branch appointees (who here are empowered to direct other executive branch agencies to provide additional resources to the Commission). I am therefore instructing the Attorney General to treat the Commission as an independent entity, separate from the executive branch.

The President's signing statement may be found here:
https://www.whitehouse.gov/the-press-office/2016/10/14/statement-preside...

The legislation was introduced in January of 2015 by Senator Heitkamp (D-ND) along with Senator Murkowski (R-AK). A companion bill, HR 2751, was introduced in June of 2015 by Representative McCollum (D-MN) with Representatives Cole (R-OK), Takai (D-HI) and Denham (R-CA) as original cosponsors.

The Act authorizes an ambitious agenda for the Commission whose members would be appointed by the President and by congressional leadership. Assisting the Commission would be a Native Advisory Committee consisting of one representative of tribes from each of the Bureau of Indian Affairs regions and one person who is Native Hawaiian.

Among the issues to be studied by the Commission are the impacts of concurrent jurisdiction on child welfare systems, federal and private funding barriers, data collection, sustainability of programs, cultural and socioeconomic challenges, examples of successful programs, and interagency coordination issues. The Act includes a lengthy list of subjects that the Commission's recommendations are to address.

The Senate bill as introduced included a $2 million authorization for the expenses associated with the work of the Commission. However, the House deleted the funding authorization and the bill as enacted does not include a specific funding authorization. The Act provides that the Commission may approve the detailing of one or more employees from the Departments of Justice, Interior, Education, and Health and Human Services to work with them. The work of the Commission and the Advisory Committee will need to be undertaken with available funds.

The text of the Alyce Spotted Bear and Walter Soboleff Commission on Native Children may be found here: https://www.congress.gov/114/bills/s246/BILLS-114s246enr.pdf

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Inquiries may be directed to:
Karen Funk (kfunk@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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