Category Archives: legislation
House Passes Clean Carcieri Fix
Proposed Rulemaking on Qualified Opportunity Funds
RES 2019 – Tribal 8(a) – Hemp legalization Opportunity Zones
- 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
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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.
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Washington Highlights
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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
Bureau of Indian Education Eliminations
U.S. Department of Housing and Urban Development Eliminations
U.S. Department of Health and Human Services Eliminations
U.S. Department of Education Eliminations
Proposed Increases
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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.
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.
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.
Land-in-Trust challenge against Ione Band stopped in Ninth Circuit; U.S. Supreme Court Carcieri Ruling Distinguished.
On Oct. 6, the Ninth Circuit affirmed the Eastern District of California’s grant of summary judgment in favor of the Department of Interior (DOI). In 2005, the County of Amador challenged the 2012 Record of Decision placing land into trust and approving casino development for the Ione Band of Miwok Indians. Specifically, the challenge focused on the determination that the Tribe was under federal jurisdiction, per the Indian Reorganization Act (IRA), and was a restored tribe receiving restored lands under the Indian Gaming Regulatory Act (IGRA).
The Ninth Circuit, interpreting Carcieri v. Salazar, 555 U.S. 379 (2009), decided that a tribe must have interacted with the federal government prior to 1934 and must be officially recognized at the time of the trust application submission. Land purchase negotiations over the course of the late 19th and early 20th centuries involved Congress and the Department in Ione Band affairs.
The appellate court understood this to mean that the Tribe had been under federal jurisdiction and that the intent of the IRA allowed recognition to occur at any point as long as federal jurisdiction was established in 1934 or earlier. The Ninth Circuit examined the legislative history of the IRA, in addition to contemporaneous administrative findings, and found that Congress intended the Act to apply to tribes recognized after 1934.
DOI’s interpretation of “under federal jurisdiction” separated the meaning of “recognized” from the phrase. The Department considered federal jurisdiction to mean an action or series of actions that establishes or reflects Federal obligations, authority, and duties for or to a tribe. The Court accepted this interpretation, affirmed the district court, and also ruled that the IGRA “restored tribe” exception was met.
In a related case, No Casino in Plymouth v. Zinke, the appellate circuit remanded to the Eastern District of California with instructions to dismiss for lack of subject-matter jurisdiction and organizational standing. The plaintiffs had not submitted specific facts showing that its members would have individual standing and its evidence was not allowed for a motion of summary judgment. Read case
Washington Update: Budget, Health Care, and Tribal Energy
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Native Law Policy 