RES 2019 – Tribal 8(a) – Hemp legalization Opportunity Zones

 
We attended Res 2019 in Nevada, where they had a record attendance of Native Business and Tribal leaders.   The work sessions included the interest Tribes and tribal businesses are showing in the production Hemp as a crop and development of  Hemp  products since the legalization of Hemp in the Farm Act.  And, the conference provided sessions with detailed information on how to start up a tribal economic development division.    There were also interesting sessions on taking advantage of the Opportunity Zone Tax incentives, created by the Tax Cuts and Jobs Act, that offers new options for investment in economically distressed communities. Certain investors believe that the creation of Qualified Opportunity Zones will be significant.
Our firm is currently active in drafting Hemp production ordinances for clients and understanding the market for Hemp and Hemp products.  We also can help clients understand the Tax Cuts and Jobs Act and the potential offered by Opportunity Zones.   And, many of those attending RES are part of or have started Tribal 8(a) corporations.   Our firm has experience in this area as well, and won a significant case for a Tribal 8(a) that had been terminated, by reversing the agencies  decision.  Please let us know if we can assist you with tribal 8(a) or individual 8(a) issues in some way.  We discovered at the conference that many Native 8(a) applications had been lost by SBA after the government shut down.  We would very much like to assist you, if you have similar 8(a) questions or concerns.
We offer consultation and legal services for tribal owned enterprises, contractors, and other businesses in Indian Country. We can assist you with the SBA 8(a) process, understanding federal program requirements, applying for government contracts, and legal issues that arise from venturing with non Native Corporations.
In addition we can help with:
  • Enacting a Tribal code for creating corporations and other business entities
  •  Choosing a structure that best serves your business needs
  • Obtaining Tribal 8(a) certification and status
  •  Forming a business under appropriate law
  • Seeking joint venture partners
  • Understanding government regulations and impact on business
  • Contacting the federal government procurement offices.

Washington Highlights – Tribal Interior Budget Council

This week the Tribal Interior Budget Council met here in D.C. at the Washington Plaza Hotel.  The focus was on the President’s budget and the elimination of several key Tribal programs (as we reported in our last update).   After the Government Shutdown and the compromise on the budget in January 2019, the Bureau of Indian Affairs in general did not fare as badly in comparison to some departments.  However, Indian Affairs still suffered losses that could have been avoided if the budget compromise had gone though as planned when the US Senate voted unanimously in September 2018 to keep the government open.  For example, Tribal road maintenance would have increased prior to the shut down by more than $4 million.  After the shutdown the increase was only $1 million.  The President’s proposed 2020 budget eliminates, Indian Guaranteed loans, Tribal Scholarships, and Housing (HIP) programs, and decreases funding for many other programs, such as the Indian Child Welfare Act, Mineral and Mining projects, public safety and education construction, and funds for small and needy tribes. see budget comparison
Tribal leaders focused on other priority issue at the conference, such as land into trust, the Bureau of Indian Education funding and programs, and Transportation and road maintenance funding.  The question is whether the Tribes have the clout to get Congress to ensure key Tribal programs and funding is protected and increased.

 

Bethany C. Sullivan & Jennifer L. Turner on Carcieri

I agree Enough is Enough …good article

Turtle Talk

Bethany C. Sullivan and Jennifer L. Turner have published “Enough Is Enough: Ten Years of Carcieri v. Salazar” in the Public Land & Resources Law Review. Here is the abstract:

Ten years ago, the United States Supreme Court issued its watershed decision in Carcieri v. Salazar, landing a gut punch to Indian country. Through that decision, the Supreme Court upended decades of Department of the Interior regulations, policy, and practice related to the eligibility of all federally recognized tribes for the restoration of tribal homelands through the Indian Reorganization Act (IRA) of 1934. The Court held that tribes must demonstrate that they were “under federal jurisdiction” in 1934 to qualify for land into trust under the first definition of “Indian” in the IRA. Carcieri has impacted all tribes by upending the land-into-trust process and requiring tribes (and Interior) to spend scant resources to establish statutory authority for trust land acquisitions, a burdensome task that had previously been straight forward…

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New Secretary of Interior is Confirmed

 
 
On Thursday, the US Senate confirmed David Bernhardt as the new Secretary of the Interior.  The vote was largely along party lines 56 to 41, some Democrats pointed out the contradiction with Trump’s administration to “drain the swamp” of those insiders in Washington who take over key appointed positions for their own gain.  Bernhardt, is a former industry lobbyist for Oil and the Agribusiness, and now sits a top an agency that governs and regulates mineral rights and leases.  Bernhardt, who has played a major role in designing the President’s policies for expanding drilling and mining, will now serve over 500 million acres of public land and vast coastal waters. However, Secretary Bernhardt is also known for imposing more ethical standards at the Department of the Interior, after scandals during the Bush Administration.  And he certainly has experience with Department programs.  He served as the Deputy Secretary under Zinke and was Acting Secretary until his recent appointment this week. See New York Times Article

The Long Awaited Mueller Report is Out: What it Reveals

 
It has been six hundred and seventy six days about since Robert Mueller began his report, in a secluded office in Southwest Washington, D.C.  The report has been completed and turned into Attorney General William Barr on a late Friday afternoon. It already reveals a lot, while the battle is just beginning on how much of the report will be available for review. Speculation is the report may kick up a political fire storm, but here is what we know so far. David Kris, a former Justice Department national security division chief was quoted with the best line. “I think if you took it all in in one day, it would kill you. It’s simply too much.”
Trump’s Campaign:  Mueller first went after key people in the Trump campaign, and successfully got indictments, plea agreements and convictions: Mueller began by alleging that the president’s campaign had been led by people who had engaged in serious crimes, i.e. Paul Manafort, Rick Gates and George Papadopoulos who was one of 14 Trump associates who had contact with Russian nationals during the campaign and transition. Mueller later alleged, Russian hackers accessed the Democratic Congressional Campaign Committee and the Democratic National Committee.
Mueller’s plea deals emphasized like former Security Advisor Michael Flynn’s, that over and over those surrounding the President downplayed their dealings with Russia. Flynn claimed he and the Russian Ambassador Sergey Kislyak did not discuss Obama-era sanctions directed at the Kremlin, when in fact they had.
Trump’s Lawyer:  Mueller’s investigation has spun off investigations in at least three U.S. Attorney’s offices.  And, one resulted in the guilty plea of Trump’s lawyer Michael Cohen, for tax evasion, bank fraud and campaign finance violations. Cohen, threw his longtime client under the proverbial bus, testifying that all these activities were directed by Trump. The Cohen case then lead to an investigation of Trump’s inaugural festivities.
Was there collusion with Russia?  What Mueller has said on this topic was related to Roger Stone, and claims he lied about efforts he made to get information to the Campaign about the hacked emails obtained by the Russians.   Mueller’s Court filings revealed that Manafort released 2016 polling data to the Russians that had ties to Russian intelligence. But Manafort was not charged with conspiring with Russia. Nonetheless, the investigation reveals, Russia’s influence over the 2016 campaign, repeated contact by Russians with Trump’s key aids and his now undisputed financial interest in a tower in Moscow.
It will be interesting to see the details in the final report. But what we know is Trumps woes are far from over. Still to come are NY state investigations about the Trump Foundation and giving to his campaign instead of Charities, two law suits over Trump Hotels’ and activities with taking “emoluments” from foreign states, and the Federal prosecution in NY over expenditures during his inauguration. We just have not heard the end of it yet.  Washington Post story

Washington Highlights

The House and Senate have been on break and will return to session on March 25th.  Before break and at field hearings, they were busy with hearings on important criminal justice topics; stopping drugs from entering Indian Country, reauthorizing of the Violence Against Women Act, and the crisis on Murder and Missing Indigenous Women.
 On March 11, 2019, the President released his fiscal year (FY) 2020 budget request to Congress. The budget proposes cutting FY 2020 non-defense discretionary  funding by $54 billion (9 percent) below the FY 2019 level, and by $69 billion (11 percent) after adjusting for inflation. The proposed budget would cut the Bureau of Indian Affairs and Bureau of Indian Education (BIA/BIE) by about 10.5 percent compared to the 2019 continuing resolution level.
Other agencies would see cuts including 12 percent for the Department of Health and Human Services, 18 percent for Housing and Urban Development, and 31 percent for the Environmental Protection Agency. The Indian Health Service budget request for FY 2020 is $5.9 billion, which is $392 million or 7 percent above FY 2019.
BIA Eliminations
  • Indian Guaranteed Loan Program
  • Housing Improvement Program
  • Small and Needy Tribes
  • Tribal Climate Resilience
Bureau of Indian Education Eliminations
  • Scholarships and Adult Education
  • Special Higher Education Scholarship
  • Replacement School Construction
  • Replacement Facility Construction
U.S. Department of Housing and Urban Development Eliminations
  • Indian Community Development Block Grant
  • Native Hawaiian Housing Block Grant
U.S. Department of Health and Human Services Eliminations
  • Low Income Home Energy Assistance (LIHEAP)
  • Community Service Block Grants
U.S. Department of Education Eliminations
  • Alaska Native Education Equity
  • Strengthening AN/NH-Serving Institutions
  • Native Hawaiian Student Education
Proposed Increases
  • The President’s budget request for tribal programs at the U.S. Department of Justice (DOJ) would increase funding overall. The increase would come as a result of a proposed 7 percent set-aside for tribal governments from across DOJ discretionary programs.


Medicare and Medicaid Funding in Jeopardy

USET and other organization are asking for help lobbying for tribal consultation on the changes to Medicare and Medicaid funding to Indian country.  The rules have changed that leave it to State’s to set work requirements for eligibility for Medicaid funding through the 1115 waiver process.  This could severely impact Indian Health service funding.  Therefore AI/AN Medicaid recipients must be made exempt from these barriers to accessing the health care to which they are entitled, and CMS has a duty to ensure that this occurs as a part of the waiver process. Medicaid currently represents 67% of 3rd party revenue at IHS, and 13% of overall IHS spending.   Tribal organization are advocating that any proposed changes to the administration of Medicaid must be preceded by comprehensive consultation with Tribal Nations. Currently, the 1115 waiver process requires that states engaged in Tribal Consultation prior to submission of 1115 Demonstrations to CMS. CMS must ensure Tribal consultation with Tribal Nations occurs at both the state and federal levels before state waiver applications can proceed.

See USET Letter

 

Fake News: It happens in Indian Country Too!

No doubt you have heard the news about the CEO and founder of Facebook, Mark Zuckerburg testifying on Capitol Hill, and explaining why he didn’t protect his Facebook subscribers from privacy breaches and those that promote false and fake news.  Well Indian Country is not exempt.  See Washington Post Article:

Well fake news happens about Indian Country too.  An article has been circulating on Facebook in recent weeks you may have seen published on May 5, with the headline, “In Victory for Standing Rock Sioux Tribe, Court Finds That Approval of Dakota Access Pipeline Violated the Law”.  That article was cut and pasted from an article a year ago.  A Vietnamese site claiming to be about Native American affairs has recycled the story to gin up clicks and advertising revenue. For some reason news about the Standing Rock reservation and Native American affairs in general have become a favorite niche of foreign-run Facebook pages and websites. If you see a news report about these topics pop up in your newsfeed, always check if you are looking at an original source before liking, sharing or commenting: it could be you are looking at old news being repackaged and fed back into your news stream by some guy in Macedonia or Kosovo wanting to make a few quick bucks.

Congress springs into action with an omnibus bill, and concerns rise about the 2019 appropriations

 

At the relief of Indian County Congress passes an Omnibus bill in March, holding the course and adding a little money to the Indian Affairs budget.  It was an uncertain, beginning to the year, that saw continuing resolutions, potential government shutdowns, a deal to raise budget caps, and a last-minute veto threat from the President.  At the end the legislation provides $1.3 trillion in omnibus appropriations for the remainder of Fiscal Year (FY) 2018.

 

Congressional appropriators rejected the deep cuts proposed in the President’s FY 2018 Budget Request, including those for federal Indian programs. Some of these provisions include:

  • Bureau of Indian Affairs (BIA): BIA is funded at a total of $3.01 billion, an increase of $203.8 million or 7.1%.
  • Indian Health Service (IHS): IHS is funded at a total of $5.5 billion, an increase of $497.9 million or 10%.
  • Victims of Crime Act (VOCA) Funding: The bill contains a 3% set aside for Tribal Nations within the VOCA fund, or $133 million for the delivery of victim services in Indian Country.
  • Opioid Epidemic: From a total of $1 billion in new grant funding to address the opioid crisis directed at state and Tribal governments, $50 million is set aside for Tribal Nations. In addition, $5 million is set aside for Tribal Nations to provide medication-assisted treatment. Finally, $7.5 million is provided for the BIA’s  Law Enforcement Opioid initiative.

Significant increases:

  • Infrastructure: spending would increase for BIA and IHS construction, BIA road maintenance, and a $100 million competitive grant program is added under Native American Housing Block Grants (NAHBG) in addition to the $655 million provided for the NAHBG formula grants.
  • Road Maintenance: will receive a 14 percent increase to $34.6 million.
  • Restoration of the Tiwahe initiative: at the fiscal year 2017 enacted level.
  • Violence Against Women Act: $2 million to implement both training and specific Tribal court needs, and $13 million to address the needs of Tribes affected by Public Law 83- 280.
  • BIA Construction: would increase by $162 million to $354.1 million, an 84 percent increase.
  • Opioid initiative:5 million for the Bureau of Indian Affairs Law Enforcement.

See Link: Budget Report

An interesting strategy has been proposed this last week to handle 2019 appropriations bills.  Nearly, 16 Republican senators announced a willingness to work through August recess to complete spending bills and confirm more of President Donald Trump’s nominees. Sen. David Perdue of Georgia, who has led the effort, hinted that a letter to Majority Leader Mitch McConnell of Kentucky would be forthcoming. “The Senate should immediately begin work on one or several consolidated appropriations bills, so they can be openly debated and amended accordingly,” the senators wrote. “Our defense priorities are bipartisan, and they should come first.”

That letter signals a willingness by the conservatives to bundle spending bills together, perhaps using the “minibus” strategy in which several regular appropriations measures get combined on the floor. Normally, senators would not want the chamber in session well into August during an election year, with lawmakers eager to be home and meeting with constituents and voters.  The Republicans seem to want to avoid a last minute continuing resolution to keep the government funded past the end of September and they want to confirm a large number of Trump nominations as August approaches. Some of the 77 confirmations that took place by unanimous consent or voice votes as the August recess got underway in 2017 might have happened without a cancellation threat since that’s been the normal practice of the Senate.

These 16 senators, however, believe the threats affected the behavior of Senate Democrats. “Our diligence was rewarded with reason, and that can happen again,” the senators wrote.

See Article

Meanwhile dozens of Indian Country leaders were on Capitol Hill last week to present their budget priorities to key members of Congress before the Appropriations subcommittee on Interior. The testimony from tribes and Indian organization, representing every region of the nation, had a consistent message – Indian Country needs additional funding as part of the federal government’s trust and treaty responsibilities. The panel’s Republican and Democratic leaders, for the large part, have embraced that goal.
After hearing from the tribal witnesses, the House Appropriations subcommittee on Interior will spend the next month or so drafting the Interior appropriations bill. The package is typically released sometime in June, with lawmakers aiming to get it passed before October 1, the start of fiscal year 2019.

Trump Reduces Bears Ears National Monument

President Trump announced he would reduce the size of two national monuments at the Utah State Capitol in Salt Lake City on Monday. CreditTom Brenner/The New York Times

SALT LAKE CITY — President Trump said he would dramatically reduce the size of a vast expanse of protected federal land in Utah on Monday, a rollback of some two million acres that is the largest in scale in the nation’s history.

The administration said it would shrink Bears Ears National Monument, a sprawling region of red rock canyons, by about 85 percent, and cut another area, Grand Staircase-Escalante, to about half its current size. The move, a reversal of protections put in place by Democratic predecessors, comes as the administration pushes for fewer restrictions and more development on public lands.

The decision to reduce Bears Ears is expected to trigger a legal battle that could alter the course of American land conservation, possibly opening millions of protected public acres to oil and gas extraction, mining, logging and other commercial activities.

“Some people think that the natural resources of Utah should be controlled by a small handful of very distant bureaucrats located in Washington,” Mr. Trump said, speaking at Utah’s domed State Capitol. “And guess what? They’re wrong.”

“Together,” he continued, “we will usher in a bright new future of wonder and wealth.”

President Barack Obama designated Bears Ears in 2016, and President Bill Clinton set aside Grand Staircase-Escalante in 1996. In both cases, Utah politicians said the actions were illegal abuses of a century-old law called the Antiquities Act.

Continue reading the main story

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