Navajo Nation Washington Office

Yá’át’ééh

This week congress considered H.R. 8404, the Respect for Marriage Act. It passed the House and now moves onto the Senate. The White House Council on Native American Affairs engaged with Tribal leaders to receive input on the Tribal Homelands Initiative. The consultation was co-chaired by DOI Secretary Deb Haaland and USDA Secretary Tom Vilsack.

In addition, federal regulators are considering changes to the Community Reinvestment Act. Tribes are encouraged to provide comments to the proposed changes. 

Last week, after almost 50 years, gold medals were restored to Native American Olympic Athlete, Jim Thorpe. Native American Athletes have made several important contributions to sports, and we continue to honor them. 

Enjoy this week's Wááshindoon Weekly!

Ahéhee'

Lashawna R. Tso

Just as the Navajo Nation Council has begun to debate legislation that would recognize same-sex marriages in the Navajo Nation, the U.S. Congress has reopened the same-sex marriage debate at the national level with legislation that would require all states to recognize any marriage that is valid in another state, including same-sex and interracial marriages. The legislation primarily amends certain parts of federal law that have been deemed unconstitutional to bring them in line with current Supreme Court precedent, and it creates a private cause of action and allows the Department of Justice to bring a civil action to enforce the provisions of the law. Importantly, it does not actually require states to issue marriage licenses to same-sex or interracial couples, but it does require states to recognize such marriages as valid under the "Full Faith and Credit" clause of the U.S. Constitution when legally performed under the laws of another state.

The bill in question, H.R.8404, the Respect for Marriage Act, passed the House on Tuesday of this week and has now moved on to the Senate. While many commentators initially thought the bill would be dead on arrival in the Senate, due to the need to secure ten Republican votes to overcome a filibuster, the amount of Republican support in the House has given supporters of the bill hope that it may have a chance of making it through the Senate. The bill passed the House in a 267-157 vote with 47 Republicans supporting the measure. A few Senate Republicans have already expressed interest in supporting the bill, including Lisa Murkowski of Alaska, and Rob Portman of Ohio. Senator Portman is notable for reversing his position on the issue, having initially opposed same-sex marriage, but declaring that he would support it after his son came out as gay a few years ago.

While many Republicans oppose the bill because they are fundamentally opposed to same-sex marriage, some Republican senators have criticized the legislation as unnecessary virtue signaling right before an election, as states are already required to recognize same-sex marriage under the Obergefell v. Hodges decision of the Supreme Court. However, Republican supporters of same-sex marriage argue that Congress should pass laws to codify Supreme Court  rulings when they are in agreement. There is still value in cleaning up federal laws that may be unconstitutional, and codifying unenumerated rights so that it is clear where Congress stands on the position. “I have suggested to others that not only would I like to see Roe, Casey, and Griswold on contraception codified but I've also made clear my support for gay marriage years ago,” said Senator Murkowski. Despite this statement of support for codifying other unenumerated rights like contraception, a similar bill, H.R.8373, that would do exactly that, passed the House with only eight Republican votes.

The current push for legislation to protect same-sex marriage is a direct response to the U.S. Supreme Court decision in Dobbs v. Jackson Women's Health Organization, which overruled Roe v. Wade, leaving the question of whether a state can limit a woman’s right to an abortion up to the states and not the federal court system. The primary reasoning behind the Dobbs decision brought into question the idea of unenumerated rights as an integral part of substantive due process and has left many Democrats in particular worried about what other precedents the Supreme Court might overturn next. It is worth noting that three of the judges who dissented in the Obergefell decision—Chief Justice Roberts, and Justices Thomas and Alito—are still on the Court, and three new Republican appointees have joined the Court since that time, which could provide the votes needed to overturn protections for same-sex marriage if the issue came before them.

Some of the other unenumerated rights protected by Supreme Court precedent on substantive due process, but not explicitly identified in the Constitution, include the right to marry the person of your choosing regardless of race or gender, the right to use contraceptives, and the right to educate your child in a language of your choosing (see Meyer v. Nebraska), which may be of particular interest to Native peoples working to pass their ancestral languages to the next generation. 

On Tuesday of this week several Native organizations, including the National Congress of American Indians and the Center for Indian Country Development, hosted a virtual listening session with federal regulators on proposed changes to the regulations governing the Community Reinvestment Act (CRA). If these rules go into effect, it could lead to greater investment in Indian Country by encouraging banks to extend credit to underserved tribal communities.

One of the key presenters was Lael Brainard, Vice Chair of the Board of Governors of the Federal Reserve System (“the Fed”). In her remarks she mentioned the many ways in which Indian Country has been denied access to credit in the commercial banking sector. According to 2019 data, over 16 percent of Native Americans do not have a bank account, a number three times higher than the national average. And as of 2021, there is an average of two and a half bank branches serving each majority-Native American county, which is less than one-tenth of the average of 26 bank branches that serve counties nationwide. Likewise, small business and small farm lending in census tracts that are majority Native American is only about a quarter of lending in census tracts with a non-Hispanic White majority.

The proposed rule changes would provide banks with extra incentives to lend and invest in Native communities by expanding the definition of what counts as a Native community and clarifying which types of lending and investment would help boost a bank’s CRA score. And while there is still an emphasis on establishing branches in underserved communities, the changes also take into consideration the growing practice of online lending that allows banks to lend to communities that are not in their traditional service areas. Other presenters included Michael Hsu, Acting Comptroller of the Currency, Martin Gruenberg, Acting Chairman of the Board of Directors of the Federal Deposit Insurance Corporation, and a panel of officials from FDIC, the Fed, and the Treasury.

The Community Reinvestment Act was passed in 1977 in an effort to reform the private banking industry to eliminate redlining, a practice where banks would identify certain neighborhoods (usually poor neighborhoods with lots of minorities) as high risk, and thereby limiting the types of loans individuals and businesses in those neighborhoods could receive. While it doesn’t require banks to give loans to high-risk applicants, the CRA does requires banks to endeavor to meet the banking needs of all members of its community, including those living in low- and moderate-income neighborhoods. In order to further this goal, federal banking regulators are tasked with evaluating every bank’s CRA compliance. If the bank receives a score that is less than “satisfactory” they will be blocked from certain activities that could lead to growth such as opening new branches, acquiring subsidiaries, or merging with other banks. They will also be subject to stricter scrutiny from regulators in other respects and face more frequent CRA evaluations until their score is deemed “satisfactory”.

Tribal leaders, Native citizens, and Native businesses are encouraged to provide written comments on the proposed rule changes by August 5, 2022, by following the submission instructions in the Federal Register Notice.

Federal Register