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Thursday, February 28, 2013

Native Americans: A Compendium

This Compendium focuses primarily on American Indians with 12 sections covering topics such as educational issues, child welfare water rights the Indian Trust Fund, tribal government and tribal jurisdiction, taxation, criminal justice, and gaming. A single section is devoted to Alaska Eskimo.

Congress has extensive power to legislate on Indian affairs. This includes oversight of the trust relationship between tribes and the federal government, the regulation of Indian gaming, the extent of tribal criminal and civil jurisdiction, and the scope and administration of federal grant programs and benefits conferred on Indian tribes and other Native Americans. In addition to recurring appropriations and authorization issues involving the programs administered by the Bureau of Indian Affairs, Bureau of Indian Education, the Indian Health Service, and other federal agencies, Congress contends with an array of issues stemming from the unique legal relationship between the Indian nations and the federal government.

Updated Document as of Feb-04-2013



Date of Report: February 4, 2013
Number of Pages: 337
Order Number: C12022
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Wednesday, February 27, 2013

The Endangered Species Act and “Sound Science”



M. Lynne Corn
Specialist in Natural Resources Policy

Kristina Alexander
Legislative Attorney

Eugene H. Buck
Specialist in Natural Resources Policy


The adequacy of the science supporting implementation of the Endangered Species Act (ESA) has received considerable congressional attention over the years. While many scientific decisions pass unremarked, some critics accuse agencies responsible for implementing the ESA of using “junk science,” and others counter that decisions that should rest on science are instead being dictated by political concerns.

Under the ESA, certain species of plants and animals (both vertebrate and invertebrate) are listed as either endangered or threatened according to assessments of the risk of their extinction. Once a species is listed, powerful legal tools are available to protect the species and its habitat. Efforts to list, protect, and recover threatened or endangered species under the ESA can be controversial. Some of this controversy stems from the substantive provisions of this law, which can affect the use of both federal and nonfederal lands. The scientific underpinnings of decisions under the ESA are especially important, given their importance for species and their possible impacts on land use and development.

The Fish and Wildlife Service in the Department of the Interior and the National Marine Fisheries Service in the Department of Commerce administer the ESA, and each agency has policies and requirements to ensure the integrity and objectivity of the science that underlies ESA decisions. The Information Quality Act (P.L. 106-554, IQA or Data Quality Act) also imposes general requirements and has resulted in agency changes to carry out the goals of that act to maximize the quality, objectivity, utility, and integrity of information disseminated by the agencies.

In several situations, economic and social disputes have resulted from actions taken to list, protect, and recover species under the ESA. Critics in some of these disputes assert that the science supporting ESA actions is insufficiently rigorous. Others assert that in some instances decisions were political rather than scientific. Controversy has arisen over what might be the essential elements of “sound science” in the ESA process and whether the ESA might benefit from clarification of how science is to be used in its implementation. The courts have had occasion to review the use of science by the agencies, which generally must show their decisions were not arbitrary and that they rest on credible science. For some purposes, if that science is the best available, even if it is considered imperfect or incomplete, it still may be used.

Several bills affecting science as used in the ESA were introduced in recent Congresses, but to date none have been enacted. Legislative activity in the 112
th Congress is summarized in CRS Report R41608, The Endangered Species Act (ESA) in the 112th Congress: Conflicting Values and Difficult Choices, by Eugene H. Buck et al. No bills concerning ESA and science have yet been introduced in the 113th Congress.

This report provides a context for evaluating legislative proposals through examples of how science has been used in selected cases, a discussion of the nature and role of science in general, and its role in the ESA process in particular, together with general and agency information quality requirements and policies, and a review of how the courts have viewed agency use of science.



Date of Report: January 23, 2013
Number of Pages: 33
Order Number: RL32992
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Monday, February 25, 2013

Motorized Recreation on National Park Service Lands



Laura B. Comay
Analyst in Natural Resources Policy

Carol Hardy Vincent
Specialist in Natural Resources Policy

Kristina Alexander
Legislative Attorney


In managing its lands, the National Park Service (NPS) seeks to balance a dual statutory mission of preserving natural resources while providing for their enjoyment by the public. Motorized recreation on NPS lands sometimes brings the two parts of this mission into conflict. Offhighway vehicles (OHVs) have been particularly controversial, with calls for greater recreational access intersecting with concerns about environmental impacts and disturbance of quieter pursuits. NPS’s laws, regulations, and policies generally emphasize the conservation of park resources in conservation/use conflicts, and NPS has fewer lands open to OHV use than do other federal land management agencies such as the Bureau of Land Management and the Forest Service. The 113th Congress may address motorized recreation in the National Park System, either through broad measures (such as those concerning recreational access to federal lands) or through specific measures affecting motorized recreation at particular NPS units. 

ATVs and Oversand Vehicles.
Only 12 of the 398 park units are open to public recreational use of all-terrain vehicles (ATVs), four-wheel drive vehicles, and/or dune, sand, and swamp buggies. The extent of unauthorized use of such vehicles is in dispute. Several units are developing pilot education and deterrence programs to address unauthorized use. Legislative measures in the 112
th Congress sought to regulate OHV use at one NPS site, Cape Hatteras National Seashore. 

Snowmobiles.
Regulatory and judicial actions to allow or restrict snowmobile use have focused primarily on three Yellowstone-area park units. Winter use plans developed by NPS to establish numerical limits on snowmobile and snowcoach entries have been the subject of repeated, and often conflicting, court challenges. Most recently, NPS has issued a draft plan and supplemental environmental impact statement intended to govern snowmobile use at Yellowstone for the 2014- 2015 winter season and beyond. The plan would allow up to 110 “transportation events” per day (defined as the use of either a multipassenger snowcoach or a group of snowmobiles). 

Aircraft Overflights.
Grand Canyon National Park is at the center of a conflict over whether or how to limit air tours over national park units to reduce noise. NPS and the Federal Aviation Administration (FAA) continue to work to implement a 1987 law (P.L. 100-91) that sought to reduce noise at Grand Canyon, and a 2000 law (P.L. 106-181) that regulates overflights at other park units. P.L. 112-141, enacted in 2012, contains provisions on air tour management at Grand Canyon, including some less-stringent standards for natural quiet than NPS had recommended in planning efforts. P.L. 112-95 contains provisions to expedite and streamline agency planning actions for commercial air tours over parks generally. 

Personal Watercraft (PWC).
Since 2003, NPS has completed regulations to open designated PWC areas at 13 units. In July 2010, a federal judge ordered NPS to re-examine environmental assessments justifying PWC use at two of those units but did not overturn existing regulations. 

Mountain Bicycles.
This mechanized though nonmotorized activity also raises issues of the sufficiency of access to park lands as well as potential resource damage and disturbance of quieter recreational pursuits. Currently, more than 40 NPS units allow mountain biking on dirt trails and/or dirt roads. Mountain biking advocates have worked with NPS to explore opportunities to increase this activity in park units. In July 2012, NPS finalized a rule that eases the process for park superintendents to open trails to bicycles.



Date of Report: February 8, 2013
Number of Pages: 21
Order Number: R42955
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Wednesday, February 20, 2013

Tribal Criminal Jurisdiction over Non-Indians in S. 1925, the Violence Against Women Act (VAWA) Reauthorization



Jane M. Smith
Legislative Attorney


Richard M. Thompson II
Legislative Attorney


Domestic and dating violence in Indian country are reportedly at epidemic proportions. However, there is a practical jurisdictional issue when the violence involves a non-Indian perpetrator and an Indian victim. Indian tribes only have criminal jurisdiction over crimes involving Indian perpetrators and victims within their jurisdictions. Most states only have jurisdiction over crimes involving a non-Indian perpetrator and a non-Indian victim within Indian country located in the state. Although the federal government has jurisdiction over crime committed by non-Indians against Indians in Indian country, offenses such as domestic and dating violence tend to be prosecuted with less frequency than other crimes. This creates a practical jurisdictional problem.

S. 47 and H.R. 11, the Violence Against Women Reauthorization Act, would recognize and affirm participating tribes’ inherent sovereign authority to exercise special domestic violence jurisdiction over domestic violence involving non-Indian perpetrators and Indian victims occurring within the tribe’s jurisdiction. It is not clear whether Congress has the authority to restore the tribes’ inherent sovereignty over non-members, or whether such authority would have to be a delegation of federal authority. The tribal jurisdiction provisions of S. 47 and H.R. 11 are nearly identical to the tribal jurisdiction provisions of S. 1925, which passed the Senate in the 112
th Congress.

In a series of cases, the Supreme Court outlined the contours of tribal criminal jurisdiction. In United States v. Wheeler, the Court held that tribes have inherent sovereign authority to try their own members. In Oliphant v. Suquamish Indian Tribe, the Court held the tribes had lost inherent sovereignty to try non-Indians. The Court in Duro v. Reina determined that the tribes had also lost the inherent authority to try non-member Indians. In response to Duro, Congress passed an amendment to the Indian Civil Rights Act that recognized the inherent tribal power (not federal delegated power) to try non-member Indians. S. 47 and H.R. 11 would apparently supersede the Oliphant ruling and “recognize and affirm the inherent power” of the tribes to try non-Indians for domestic violence offenses.

The Supreme Court stated in United States v. Lara that Congress has authority to relax the restrictions on a tribe’s inherent sovereignty to allow it to exercise inherent authority to try nonmember Indians. However, given changes on the Court, and, as Justice Thomas stated, the “schizophrenic” nature of Indian policy and the confused state of Indian law, it is not clear that today’s Supreme Court would hold that Congress has authority to expand the tribes’ inherent sovereignty. It may be that Congress can only delegate federal power to the tribes to try non- Indians.

The dichotomy between delegated and inherent power of tribes has important constitutional implications. If Congress is deemed to delegate its own power to the tribes to prosecute crimes, all the protections accorded criminal defendants in the Bill of Rights will apply. If, on the other hand, Congress is permitted to recognize the tribes’ inherent sovereignty, criminal defendants would have to rely on statutory protections under the Indian Civil Rights Act or tribal law. Although the protections found in these statutory and constitutional sources are similar, there are several important distinctions between them. 
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Date of Report: February 4, 2013
Number of Pages: 19
Order Number: R42488
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Tuesday, February 19, 2013

Genetically Engineered Fish and Seafood: Environmental Concerns



Eugene H. Buck
Specialist in Natural Resources Policy

In the process of congressional oversight of executive agency regulatory action, concerns have been raised about the adequacy of the FDA’s review of a genetically modified (GM) salmon. More specifically, concern has focused on whether and how potential environmental issues related to this GM salmon might be addressed. In response to these concerns, several bills were introduced in the 112th Congress seeking to declare GM fish unsafe and thus prevent FDA approval of this salmon for human consumption or to require that GM fish be specifically labeled. No final action was taken on these bills by the 112th Congress.

Genetic engineering techniques allow the manipulation of inherited traits to modify and improve organisms. Several GM fish and seafood products are currently under development and offer potential benefits such as increasing aquaculture productivity and improving human health. However, some are concerned that, in this rapidly evolving field, current technological and regulatory safeguards are inadequate to protect the environment and ensure public acceptance that these products are safe for consumption. (The safety of GM foods for human consumption is not addressed in this report.)

In the early 2000s, several efforts began to develop GM fish and seafood products, with a GM AquAdvantage salmon developed by AquaBounty, Inc., in the forefront of efforts to produce a new product for human consumption. By September 2010, requested data had been provided to the U.S. Food and Drug Administration (FDA) by AquaBounty, and FDA’s Veterinary Medicine Advisory Committee held public hearings on the approval of AquAdvantage salmon for human consumption. The public comment period on FDA approval closed on November 22, 2010.

Environmental concerns related to the development of GM fish include the potential for detrimental competition with wild fish, and possible interbreeding with wild fish so as to allow the modified genetic material to escape into the wild fish population. Sterilization and bioconfinement have been proposed as means of isolating GM fish to minimize harm to wild fish populations. To address these concerns, AquaBounty proposed producing salmon eggs (all sterile females) in Canada, shipping these eggs to Panama, growing and processing fish in Panama, and shipping table-ready, processed fish to the United States for retail sale.

On December 20, 2012, FDA announced the availability for public comment of (1) a draft environmental assessment of the proposed conditions specified by AquaBounty and (2) FDA’s preliminary finding of no significant impact (FONSI) for AquaBounty’s conditions. The 60-day public comment period runs through February 25, 2013. If significant new information or challenges arise in the public comments, FDA must decide whether or not a full environmental impact statement is required prior to approval of AquaBounty’s application. If approved, AquAdvantage salmon would be the first GM animal approved for human consumption.



Date of Report: January 29, 2013
Number of Pages: 12
Order Number: R41486
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