Category Archives: news

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

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Article About the Little Traverse Reservation Boundary Case

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

 
WASHINGTON LEGISLATIVE UPDATE:  
Budget – Health Care – Special Diabetes Program  and Tribal Energy 

 

On Oct. 5, the House passed a bill for the 2018 budget that lays out the foundation to take advantage of Senate rules for recent tax reform proposals. The Senate allows tax and spending measures to pass with a simple majority. The House budget plan accommodates $203 billion in future spending cuts meant to offset the tax reform’s projected $1.5 trillion increase to the deficit. Meanwhile, budget legislation has gone through committee in the Senate, poised for a floor vote later this month. This bill directly allows a $1.5 trillion deficit increase to be written into tax legislation. Republicans believe that the deficit increase will be offset by economic growth but this conclusion has yet to be thoroughly researched.
The House’s budget will allow $203 billion in spending cuts. These cuts have yet to be finalized and negotiations will likely be stalled by discussion on the pending tax bill. GOP leaders have made a point of prioritizing tax reform and writing the budget to reflect this emphasis. Senate Republicans are skeptical of tax reform proposals like repealing the state and local tax deduction, but are willing to support the budget to move along tax negotiations. The Senate has asked the Energy and Natural Resources Committee to find $1 billion in deficit savings. These savings would likely come from the opening of the Arctic National Wildlife Refuge to fossil fuel extraction. The two budget proposals expect to balance by 2027, mostly through cuts to federal entitlement in future legislation.
The Senate pulled its most recent healthcare reform effort, the Graham-Cassidy proposal, from the voting schedule, due to a lack of support within the party. The legislation would have removed Medicaid expansion, cost-sharing protections, and premium subsidies. The bill also would have transferred federal trust responsibility over Medicaid to the states. On Sept. 29, President Trump signed into law FAA appropriations that included $37.5 million in funding for the Special Diabetes Program through the first quarter of FY2018. Rep. Mullin (R-OK) has introduced a bill, H.R.3917, which will supplement this funding with $112.5 million for the remainder of FY2018 and $150 million for FY2019.
The House Committee on Natural Resources is waiting to vote on H.R. 210, the Native American Energy Act. The Indian Tribal Energy Development and Self-Determination Act Amendments, S.245 (Hoeven R-ND), has passed through committee and has been waiting for a floor vote since May. The two measures work to support tribal energy independence. The House initiative would streamline the land asset appraisal process, support biomass production, and add tribal consent restrictions for Interior rules on energy production. The Senate bill extends to tribes the state and municipality hydroelectric license preference and DOE energy development loans. DOE would allow inter-tribal organizations to qualify for grants and Interior would provide technical assistance with energy resource development. Additionally, Interior would defer to tribal resource agreements and certified tribal energy development organizations for energy-related leases, rights-of-way, and business agreements. See Washington Post Article for further developments

Mark Trahant: Indian Country goes ignored as Republicans focus on tax reform: Oct 3, 2017

Indians don’t pay taxes?

Or why the coming tax debate matters so damn much
By Mark Trahant
Trahant Reports
TrahantReports.ComThe Senate has given up on destroying Medicaid and much of the health care system and is now focused on restructuring the federal tax system (and destroying entitlement programs in the process).Here is what Speaker Paul Ryan said Sunday on CBS’ Face the Nation: “We’re going to double that standard deduction. We’re going to make it so he can fill out his taxes on a postcard. We’re going to lower his taxes. That’s really important. So he has more tax-home pay. But there’s another component to this is, look at this machine shop, this business pays about a 40 percent tax rate but it competes with companies all around the world who pay an average 22 and a half percent on their taxes.”The GOP Framework begins with this set of principles: “President Trump has laid out four principles for tax reform: First, make the tax code simple, fair and easy to understand. Second, give American workers a pay raise by allowing them to keep more of their hard-earned paychecks. Third, make America the jobs magnet of the world by leveling the playing field for American businesses and workers. Finally, bring back trillions of dollars that are currently kept off-shore to reinvest in the American economy.”So how does Indian Country fit into that framework? Indians don’t pay taxes, remember? Actually if you Google that phrase it returns 2.17 million hits. It’s still a myth that will not fade away. But the larger issue of tax reform and its impact on Indian Country is still a complicated question, one that starts with the definition of “taxes.”Most so-called middle-income wage earners pay income taxes. Roughly one-third of all wage earners do not pay income taxes — and that would include a lot of tribal citizens, especially those living in their tribal nations. There are nearly 150 million tax returns filed every year and 36 million end up paying no tax at all. Another 16 million had taxable income but didn’t pay anything because of tax credits, deductions and other adjustments.And, many of Indian Country’s working class especially benefit from one such credit, the Earned Income Tax Credit. This is a hugely successful policy that returns cash money to some 7 million family incomes; a paid bonus of sorts for working.“Numerous studies show that working-family tax credits boost work effort,” according to The Center for Budget and Policy Priorities. “The EITC expansions of the 1990s contributed as much to the subsequent increases in work among single mothers and female heads of households as the welfare changes of that period, extensive research has found. Women who benefited from those EITC expansions also experienced higher wage growth in subsequent years than otherwise-similar women who didn’t benefit. And, by boosting the employment and earnings of working-age women, the EITC boosts the size of the Social Security retirement benefits they ultimately will receive.”In addition, the research shows that by boosting the employment of single mothers, the EITC reduces the number of female-headed households receiving cash welfare assistance,” according to the center.So far, at least, there is no plan to end the Earned Income Tax Credit. However the House Budget Committee has proposed that the IRS require more proof from taxpayers and audit homes with an error. (Auditing the poor seems a long way from the Willie Horton philosophy of tax collection, or bank robbing, and that’s the idea you go where the money is.)Read full article:

Washington Update: Oct. 2017

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.

Happy New Year 2016

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. new years 2016

NEW HIGHWAY BILL BREAKS THE DEADLOCK

Tribal roads 4After contentious negotiations the Congress passed a 5 year fully funded Transportation Bill, boosting spending on roads and transit systems by billions each year.   The “FAST ACT” is an over $305 billion bill.  It increases spending on highways by 2.1 $billion the first year above current levels.  By the final year 2020 the bump is $6.1 billion above the $50 billion in recent years.
The FAST ACT provides a significant percentage increase in monies on highway funding.  And it has protected funding for Transit Systems, that some wanted out from the bill, and also gives increases for pedestrian and bicycle programs and $200 million for rail safety.
The Senate and the House initially had different funding provisions.  The Conference Committee settled primarily on House plan to use money that The Federal Reserve Bank uses as a cushion against losses and a Senate proposal to reduce the amount of interest the Federal Reserve pays to Banks.
This bill ended the era of short term extensions that has been the order of the day for the last 10 years.  The bill triples the amount the National Highway Safety Administration can impose in civil fines, and continues the popular Transportation Infrastructure Finance Act program.  And, it re-authorized the Export Import Bank that allowed loans to foreign companies purchasing US goods.
While this Bill is a landmark moment for Congress that is considered a do nothing body, it still failed once again to find a renewable source of cash for the nation’s transportation needs.  Because the need to get from place to place in our country stands alone to the degree it touches everyone young and old – it is a goal that transcends political parties.  Thus the compromise on the Bill by the Conference Committee was touted as a bi-partisan success.   But the failure to fund a long-term way to pay for transportation reveals the party politics differences.
Dividing Lines:  The issues that divided the parties;
  1. Should money be found through user taxes like the gas tax or by taxing the number of miles driven?
  2. Can long term funding be found by bringing home billions of dollars in taxable income that corporations have stashed off shore?
  3. 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?
  4. 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?
These are all proven to be thorny political issues.   A key reason that the House opted not to raise the gas tax even though a gas tax had broad support from the Chamber of Commerce, Automobile Association, Labor Unions and Trucking was that many House members pledged to NEVER raise taxes on anything.   And another key belief held by the far right wing or Tea Party Coalition was that the Federal Government should be less involved in Transportation.   Instead they want the issue left to the states and give localities the right to prioritize Transit programs or pedestrian projects.  Some States believe that would eliminate some costs imposed by Federal regulations and then the States would be free to spend their own money on their own priorities.
Dual Taxation in Indian Country:
This debate over the power of States or the Federal Government to control funding for Transportation echo’s the debate today in Indian Country over Dual Taxation.  Right now many of us in Washington are looking at how to use the revision of the Indian Trader Regulations to stop dual Taxation of Tribal Governments.  State governments provide few services on Indian Reservations, but still impose taxes on severance of nature resources, retail sales, and increasingly on property such as wind generation facilities. Tribal governments are then forces to collect state taxes and if they impose a tribal government tax, then the resulting dual taxation drives business away.  The dilemma means Tribes collect no taxes and suffer inadequate roads, schools, police, courts and health care.  We raise the Dual Taxation issue that is currently being debated in Indian Country as a possible source of revenue for Tribal roads and other infrastructure needs, to highlight, that now is the time to pay attention to the how the overall funding for transportation is resolved in Congress.  This may be the right political time, for Tribes to seek a solution to prevent dual taxation by States, and provide Tribes more tax jurisdiction to supplement their own transportation funding needs.   The new Transportation bill includes provisions to promote development of alternatives to the 18.4 cent gas tax, which as you know is not enough to pay for National or Tribal Transportation costs.
The Bottom-line:
It was reported that Senator Boxer (D-CA) and Senator Inhofe (R-OK) worked closely to get the job done on the Transportation bill.   Boxer said it was such a “bruising process” it was motivating to finding a permanent solution.   Because Transportation is such a high priority for both Parties she believes they will “figure it out”.
The bottom-line the FAST ACT moved fast out of the Senate.  In one day the bill got out of the House and Senate with a vote of 83 to 16 in the Senate and 359 to 65 in the House.  In the House Chairman Shuster and Ranking member DeFazio worked through hundreds of amendments, requiring staff to work on the bill through Thanksgiving weekend.  The FAST ACT was a breakthrough in partisan politics and deadlock.  But much still needs to be done for adequate long term funding for Transportation.
FAST ACT PROVISIONS THAT INCREASED FUNDING OR IMPACTED TRIBAL TRANSPORTATION
  •   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)).

Victory for Big Lagoon Rancheria: Restoring Certainty for Challenging Lands into Trust after 1934

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.

Highway Trust Fund – How it works

The Highway Trust Fund, which collects and allocates money to build and maintain surface transportation structures, receives almost 90 percent of its funding from a fuel tax on gasoline and diesel, while remaining revenue comes from miscellaneous taxes on tires, heavy vehicles, etc. Since 1993 the fuel tax has not adjusted. Advancements in technology has led to a decrease in the amount of fuel consumed and thus a decrease in revenue. Additionally, the almost 25 percent of the revenue from the fuel tax is diverted away from highway spending.

The Highway Trust Fund itself is divided into two accounts—the Highway Account and the Mass Transit Account—and each account expends roughly 85 percent and 15 percent of the total funds respectively. Highway Trust Fund spending has routinely outpaced fuel tax revenue. For the 2015 fiscal year, the Highway Account is estimated to spend upwards of $44 billion on roadway infrastructure and similar projects while only taking in $34 billion. Including the deficit accumulated by the Mass Transit Account, the Highway Trust Fund is expected to amass a deficit of $13 billion by the end of the 2015 FY.

Because the Highway Trust Fund cannot have a negative balance and must have a $5 billion minimum balance to meet obligations, Congress must shift money from the Treasury’s general fund. Over the last six years, Congress has diverted general fund dollars to the Highway Trust Fund more than thirty times. These “patches” are short-term fixes typically lasting from six months to a year and do not represent viable options in the long run.

Proposals for sustainable solutions include:

  • Increasing fuel tax
  • Decreases non-highway spending
  • Taxing the overseas earnings of multinational corporations (repatriation)
  • Downsizing Federal role in transportation
  • Additional State actions such as tolls, bonds, sales taxes

Click here for more information on how the Highway Trust Fund works.

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