Category Archives: Congress

 House Passes Clean Carcieri Fix 

It has been a long road for Tribes like the Narragansett Indian Tribe that faced the impact of the U.S. Supreme Court decision Salazar v. Carcieri in 2009 that ruled tribes not under federal jurisdiction at the time the Indian Reorganization Act was enacted in 1934 could not take land into trust.  This ended for the tribe the dream of a housing project on tribal land.  Today the project stands in ruins.  On Wednesday this week, the House of
Representatives passed a clean Carcieri Fix, reinforcing the authority of the Department of the Interior to take lands into trust for all tribes.  Now, the bill H.R. 375 goes to the Senate.  The House action comes after 10 years of advocating by Tribes to correct the decision that went against long standing federal policy.
It is a big step to righting a wrong and correcting an inequity against tribes that were blocked from taking their land into trust.  After the Supreme Court decision, many tribes have spent precious resources defending their homeland, and threats to projects they developed on their land.

Carcieri Fix Legislation Scheduled for House Floor May 8, 2019

On May 8, 2019, the House is scheduled to voteon H.R. 375, a bill to amend the Act of June 18, 1934 (Indian Reorganization Act), to reaffirm the authority of the Secretary of the Interior to take land into trust for all tribal nations. Introduced by Representative Tom Cole (R-OK) with bi-partisan support, the bill presents a “clean fix” to the conflict caused by the Supreme Court’s 2009 decision in Carcieri v. Salazar, which held that the Secretary of the Interior lacks authority to take land into trust under Section 5 of the Indian Reorganization Act for tribal nations that were not under federal jurisdiction in 1934. For a decade, tribal nations have called for a clean fix to the costly turmoil caused by this misguided decision.
H.R. 375 would (1) restore the Secretary’s IRA authority to take land into trust for all federally recognized tribal nations; and (2) reaffirm existing Indian trust lands.

Proposed Rulemaking on Qualified Opportunity Funds

Created by the Tax Cuts and Jobs Act (enacted December 2017), Opportunity Zones are economically distressed areas where investments in development projects can receive special tax breaks. Opportunity Funds use the investments to stimulate development in these areas.
Currently, investors can defer taxes on capital gains invested in these Funds when the investment is sold or exchanged by the Opportunity Fund or December 31, 2026 at the latest. If an investor has money in the Fund for more than five years, then 10% of the capital gains earned are excluded from calculating income and deferred taxes. If the investment is held for more than seven years, the percentage increases to 15%. After ten years, the fair market value at the time of sale or exchange determines the amount of any deferred taxes or exclusions.
Opportunity Funds may be corporations, LLCs, or partnerships making investment business structures flexible. It is unclear how the opportunity zone system will affect tribal areas because states nominate census areas for opportunity zone designation. There is potential for future regulations to include consultation with tribal governments for designating opportunity zones.
The IRS has released proposed regulations for implementing the new Opportunity Zone tax breaks. The open comment period will begin after official publication in the Federal Register and will last for sixty days. Additionally, the IRS is planning a tribal consultation to obtain additional input on the proposed rules, including guidance on trust land leases and other potential tribal concerns. IRS Pre Notice of Proposed Rulemaking

The Mueller Report: What was Mueller’s Conclusion?

As we all now well know a redacted version of the Mueller report has been released, and Barr, the Attorney General has offered to release another less redacted report to key Congressional leaders, but what does the Mueller report conclude? There seems from a range of sources that Mueller could be interpreted differently than the Attorney General initially reported. Robert Mueller seems to have had a basic concern for fairness. If a sitting President cannot be prosecuted under the policy of the Office of Legal Counsel of DOJ, then is it fair to conclude there is evidence to prosecute, if you cannot. Mueller decides it is not fair to pursue the evidence, without the opportunity of a trial, and leaves it to Congress while the President is in Office, or to prosecutors after he leaves office. NYTimes Article on Redacted Report

Mueller wrote that his evidence was not sufficient to clearly establish that the President had not committed a crime. The Attorney General, Barr insisted that it was not sufficient to establish that he had.  These conclusions are fundamentally at odds. A footnote in the Mueller report points out that a criminal investigation could ultimately result in charges being brought either after a president has been removed from office by the process of impeachment or after he has left office. Mueller seems to be rejecting the defense that a president could not be guilty of obstruction of justice for the conduct in question: “The protection of the criminal justice system from corrupt acts by any person-including the President-accords with the fundamental principle of our government that ‘[n]o [person] in this country is so high that he is above the law.”
Where does this leave the report? Will it be used as a document that sets up impeachment or exonerates the President? We will know more in coming weeks, when the battle lines are drawn, and more is revealed. At the moment, there is talk from Congressional Democratic leaders that the report reveals more than the Attorney General initially reported. But it is still unclear if the report will have a devastating impact on the President’s term in office or his campaign. It will probably depend on if the American people are tired of this topic, or want the apparent offenses of the President pursued.   It is likely each member of Congress is testing these waters in their Districts and listening to reactions of constituents to the report.  Read more

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

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.

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