Category Archives: law
This has been a hard week on Congress and the rest of the Country struggling to grasp the magnitude of the mass shooting in Las Vegas, Sunday night, and the motivation of the killer. Debate, shifted from the GOP tax reform package release last week, to gun control legislation. Representative Carlos Curbelo (R-Fla) is looking at introducing a legislative package to ban Bump Stocks, a tool to convert semi-automatic weapons to fully automatic. Speaker Ryan, has spoken this week on the issue, and implies the party is looking also at a regulatory rather than legislative fix to the use of Bump Stocks. The fact either path, is being debated by the GOP is a departure from past positions on gun control, but reflects that the shooting in Las Vegas has a big impact on country and what can be done to prevent future misuse of illegal weapons.
Meanwhile, the GOP is pushing tax reform, and the advantages to both large businesses and individuals. After, the failure to pass health care reform, to free up revenue for Tax Reform, now the debate is on whether Tax Reform will increase the deficit by reducing tax rates. If Republicans do aim for a deficit-neutral plan, it would make it much more difficult to advance a package that relies on the theory that short-term deficits can lead to long-term economic growth.
Instead, the GOP would be forced to find ways to pay for the tax cuts, inevitably creating a “winners and losers” situation in which some income brackets would see a reduction in their taxes, while others may see an increase. Removing the state and local tax deduction, for example, has become a huge point of debate within the party because some states, like Pennsylvania and New York, might be more adversely impacted than others where the state and local taxes are not as high.
For this update, we will report on the tax reform plan, where the budget stands, and how Indian country may be impacted.
We want to wish everyone a very happy and prosperous new year, and hope to see you again in 2016 at conferences or here in Washington. The Congress has been very busy at the end of this year and proud of the fact it accomplished the passage of major highway and education bills that had lingered on the congressional agenda for months, and also approved a tax break and spending package, avoiding a government shutdown. Appears that Congress is working again. As Speaker Ryan recently was quoted. “We passed more major legislation in a few weeks than we have in a few years.” See my other recent blog post for details of the recent legislation that broke the congressional deadlock.
- For the Indian Health Service (IHS), the omnibus provides a total appropriation of $4.8 billion, a 3.6% increase over FY 2015 levels. This includes flat funding at $914 million for Purchased/Referred Care (formerly Contract Health Services) and $523 for Facilities, a $63 million increase. It also provides an additional $10 million to alcohol and substance abuse for a focus on Tribal youth, and an increase of $12.9 million for staffing.
- The Bureau of Indian Affairs (BIA) is funded at a total of $2.8 billion, a 7.5% increase over FY 2015 enacted. This includes $2.26 billion for the Operation of Indian Programs, a $161 million reduction compared to FY 2015, as well as $852 million for the Bureau of Indian Education. Notably, the bill also contains $138 million for school construction, an increase of $63.7 million, which should complete the 2004 replacement school construction list.
- For Contract Support Costs (CSC) at both BIA and IHS, the omnibus creates an indefinite appropriation using the language, “such sums as may be necessary,” rather than specific amounts. Tribes and Tribal organizations advocated for the CSC line item to be made mandatory on a permanent, indefinite basis in order to stabilize funding, protect funding appropriated to other line items, and help to avoid funding shortfalls. Though the omnibus does not make CSC mandatory, providing for an indefinite appropriation will allow the agencies to pay CSC in full, as required by the Supreme Court decision in Salazar v. Ramah Navajo Chapter, as well as protect other line items in the budget and avoid shortfalls.
- In addition to the omnibus, Congress also passed a $680 million package to extend a number of critical tax provisions that have been expired since the end of 2014. Each of these tax credits is designed to encourage increased investment in projects within Indian Country, as well as increased jobs for Native people and indicate that greater tax reform is around the corner. These include:
the Interior Improvement Act
- Should money be found through user taxes like the gas tax or by taxing the number of miles driven?
- Can long term funding be found by bringing home billions of dollars in taxable income that corporations have stashed off shore?
- Should there be a turn away from a transportation only funding source such as a gas tax and instead toward using income and other taxes?
- Should money to pay for transit systems come from revenue collected mostly from drivers who pay taxes? Should tax collected from the same fee user fees be spent on bike and pedestrian needs?
- Tribal Transportation Program funding is increased each year.
- $465 million in FY 2016 and $10 million per year increases to $505 million in FY 2020 (Sec. 1101(a)(3).
- The USDOT tribal self-governance program is a new provision (Sec. 1121), there will be a negotiated rule-making for this new program.
- The Tribal Transit program is increased from $30 million to $35 million per year (with $30 million for the formula component of the Tribal Transit Program and $5 million for the discretionary competitive transit grant program under section 5311(c)(1) of title 49 (Sec. 3007(a)(1)(A) and (B) and 3016).
- A new $100 million per year grant program is established for “nationally significant” Federal Lands and tribal transportation projects (Sec. 1123).
- The Project Management and Oversight (PM&O) “takedown” for the BIA and FHWA is reduced from 6% to 5% (Sec. 1118).
- The Tribal Transportation Bridge Program takedown is increased from 2% to 3% (Sec. 1118).
- Provides tribal data collection reporting regarding the expenditure of Tribal Transportation Program funds under Section 202 of title 23 to the Secretary of the Interior (Sec. 1117(a)).
- Directs the Secretary of the Department of Transportation to report to Congress, after consulting with the Secretary of the Interior, the Secretary of DHHS, the Attorney General and Indian tribes, describing the quality of transportation safety data collected by States, counties, and tribes for transportation safety systems to improve the collection and sharing of data regarding crashes on Indian reservations (Sec. 1117(b)).
- Requires the Secretary of Transportation, after consultation with the Secretary of the Interior, the AG, States and Indian tribes, to provide a report to Congress within two years of enactment of the FAST Act that identifies and evaluates options to improve safety on public roads on Indian reservations (Sec. 1117(c)).
The Big Lagoon Rancheria had a major victory this month after an en banc decision granted Big Lagoon the authority to pursue the construction of a casino on tribal land in trust. In 1994, the United States accepted into trust an 11-acre parcel of land on which the Tribe sought to build a casino. The Indian Gaming Regulation Act (IGRA) allows tribes to operate class III gaming only after entering into a tribal gaming compact with the state. When negotiations stalled, Big Lagoon brought suit against California, and in 2007 the district court ordered the parties to come to an agreement after finding that the state had not negotiated in good faith.
California appealed, and pursuant to the Supreme Court’s decision in Carcieri (2009), the Ninth Circuit found that because Big Lagoon was not federally recognized in 1934, the Bureau of Indian Affairs (BIA) lacked authority under the Indian Reorganization Act (IRA) to accept land into trust for Big Lagoon. The three-judge panel concluded that since the 11-acre parcel was not tribal land, Big Lagoon lacked standing to compel California to negotiate.
However, the Ninth Circuit’s recent en banc panel vacated the previous decision and reinstated the district court’s holding that state violated IGRA by failing to negotiate in good faith. If California had wanted to contest the original acceptance of the parcel, the state would have had to do so under the Administrative Procedure Act within the six-year statute of limitations. The en banc panel’s ruling helps restore some certainty to tribes recognized after 1934 by preventing collateral attacks on tribal land in trust beyond the statute of limitations.