Author Archives: nativelawpolicy

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

 

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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

DC Circuit Court affirms land into trust for Buena Vista Rancheria in Amador County v. Dept of Interior

Here is the unpublished opinion in Amador County v. Dept. of Interior: CADC Unpublished Opinion Here are the briefs.

via D.C. Circuit Affirms Interior’s Indian Lands Determination on Buena Vista Rancheria Trust Parcels — Turtle Talk

An Early Look at the First Year of the Trump Administration…

The forty-fifth president of the United States hung a portrait of Andrew Jackson in the Oval Office, placed prominently behind the president’s desk. The President has named Jackson as a model executive he hopes to emulate. The 45th President has been absolutely clear about several policy goals that, if fully implemented, will lead Indian tribes […]

via An Early Look at the First Year of the Trump Administration — Turtle Talk

IS THE TRUMP ADMINISTRATION PREPARING TO GUT THE INDIAN REORGANIZATION ACT?

Turtle Talk

Last week, I posted an entry on this blog highlighting particular concerns with the Trump Administration’s proposed changes to Department of the Interior’s land-into-trust regulations.

I received a number of messages in response to that post, including one from a friend and colleague who asked this question: What if the purpose of these changes is to limit the Indian Reorganization Act’s land-into-trust provisions to the tribes that were allotted under the Dawes Act?

In my own mind, I’ve chalked-up the Trump Administration’s proposal to an attempt to slow or stop lands from going into trust, and to claim more authority to reject tribal applications. But, my colleague raised a question that merits a clear answer from the Administration.

There is a legal theory advanced in some circles that the Indian Reorganization Act’s land-into-trust language was merely intended as a remedy for those tribes that had their lands allotted and taken…

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US House Committee on Natural Resources Press Release: Tribal leaders and their advocates are embracing a once-controversial Indian land bill.


WASHINGTON, D.C., October 25, 2017
 –

Today, the Subcommittee on Indian, Insular and Alaska Native Affairs held a legislative hearing on H.R. 215, the “American Indian Empowerment Act of 2017.” Introduced by Chairman Emeritus Don Young (R-AK), the bill authorizes federally recognized tribes to lease and regulate their own lands and eliminate federal government restrictions that interfere with economic development.

“Today’s hearing is a step in the right direction for getting the federal government out of the way of America’s tribes,” Rep. Young stated. “This legislation gives tribes a critical tool to leverage when determining their futures and planning for responsible resource and infrastructure development of their lands. The ‘mother may I approach’ of the federal government – which has created endless roadblocks and costly bureaucratic hurdles – has often stood in the way of uplifting and empowering our tribes. It must change, which is why I’m committed to exploring new ideas and new legislation that gives tribes the freedom and flexibility they deserve on their lands.

Acting Assistant Secretary for Indian Affairs at the Department of the Interior (DOI) John Tahsuda testified that Indian tribes in government-to-government meetings have expressed the need “to grant tribes more autonomy and independence over their resources.”

The Department has “heard interest and requests for the Department [of the Interior] to delegate more authority to tribes, allowing them to make their own decisions on their own lands,” Tahsuda stated. [W]e are interested in accessing additional tools in our toolbox to better empower Indian country.”

A favorite saying at the Indian Land Tenure Foundation (ILTF) goes, “Nothing says sovereignty like asking for the Secretary’s permission!” according to ILTF President Cris Stainbrook.

[T]he paternalistic relationship with the federal government is continued and has continued for the past 130 years,” Stainbrook said.[V]irtually every land activity by Native nations that now requires the lengthy, time consuming Secretarial approval could be shortened by months, if not years. The many commercial development projects which dissolved because of the length of time in gaining approvals could now get down much more expeditiously.

Vice President of the Navajo Nation Jonathan Nez stressed the need for Indian land to be treated as “Tribal Nation land” rather than federal land, as his tribe has some of the highest rates for both lack of electricity and access to running water. These issues can’t be addressed without additional approval from DOI and other regulatory permits.

[O]ur land should be treated as ours and we should be allowed to manage and develop with minimal interference from other governments, whether they be federal, state or local,” Nez stated. “If we embrace this important idea, it can help the Navajo Nation in areas such as housing, utility infrastructure buildout, or economic development by eliminating unnecessary and duplicative bureaucratic reviews.”

Economic development is an important goal for tribes, and granting them the ability to capitalize on their own resources without federal impediments will go a long way toward improving socioeconomic conditions for a number of tribal nations,” Executive Vice President of Compass Lexecon and Research Affiliate at the Harvard Project on American Indian Economic Development Eric Henson added. 

[T]he ‘American Indian Empowerment Act’ is an opportunity to expand tribal self-governance by regaining complete control over our tribal land use,” Senior Council Member of the Lummi Nation Henry Cagey said. “That, in my view, is what tribal sovereignty is all about.”

Click here to view full witness testimony.

Indianz.com article on hearing

Article About the Little Traverse Reservation Boundary Case

Environmental Assessment Not Vacated on Remand in Dakota Access

The DC District Court demands defendants fulfill statutory obligations.

Turtle Talk

Here are the documents in the matter of Standing Rock Sioux Tribe et al v. U.S. Army Corps of Engineers et al (D.D.C. 16-cv-01534):

Doc. 283 – Order

Doc. 284 – Memorandum Opinion

Other materials posted here.

Excerpt:

In light of the “serious possibility” that the Corps will be able to substantiate its prior conclusions, the Court finds that vacatur is not the appropriate remedy in this case. That determination does not, however, excuse Defendants from giving serious consideration to the errors identified in this Court’s prior Opinion. Compliance with NEPA cannot be reduced to a bureaucratic formality, and the Court expects the Corps not to treat remand as an exercise in filling out the proper paperwork post hoc. After the agency’s further work on remand, the parties may well disagree over the sufficiency of its conclusion. If and when such a dispute arises, they will again have the…

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