Category Archives: policy

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

Tribal Transportation Funding Re-authorization Legislation

Legislators are hoping to make significant progress on the FAST Act (Transportation) re-authorization before the congressional recess in August, but it is unclear whether that progress will result in a bill markup by the Senate Committee on Environment and Public Works or move closer to a floor vote.
On April 11, Sen. John Hoeven (R-ND) introduced the Addressing Underdeveloped and Tribally Operated Streets (AUTOS) Act. The Act, S.1211, aims to improve federal funding procedures for road safety and repairs in Indian Country. Joining Sen. Hoeven, the bill’s cosponsors are Sens. Martha McSally (R-AZ) and Kevin Cramer (R-ND). Senator. The bill has been referred to the Senate Committee on Indian Affairs that Senator Hoeven chairs.
Tribal transportation authorities currently receive a majority of funding under the Tribal Transportation Program (TTP), which is jointly managed by the BIA and Federal Highway Administration. TTP initially received $465M in fiscal year 2016 under the FAST Act, the current legislation for transportation funding. With the FAST Act set to authorize $505M for the next fiscal year and expire in September 2020, the AUTOS Act’s sponsors see an opportunity to streamline the federal funding process and to address the increasing maintenance backlog for roads, bridges, and safety features on tribal lands.
The Act’s main impact for tribal transportation budgets is the additional $16M in funding that it would add to any amount included in a FAST Act reauthorization for fiscal year 2021. This figure would increase by $2M each year with a total of $24M for the 2025 fiscal year. The BIA Road Maintenance Program would receive separate dedicated funding of $46M for the 2021 fiscal year and end with $54M for fiscal year 2025.
The AUTOS Act would allow the Secretary of Interior to create categorical exclusions from environmental review similar to those already established by the Department of Transportation. For safety projects that still require review, the Secretary or other supervising federal official will have to use the shortest timeline possible to report back to the Indian tribe proposing the project. Under the proposed bill, Tribes also can enter into agreements to conduct environmental reviews for TTP funded projects.
The AUTOS Act would also start a federal initiative to standardize crash reports for tribal road accidents and study road maintenance best practices. Read AUTOS Act

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

RES 2019 – Tribal 8(a) – Hemp legalization Opportunity Zones

 
We attended Res 2019 in Nevada, where they had a record attendance of Native Business and Tribal leaders.   The work sessions included the interest Tribes and tribal businesses are showing in the production Hemp as a crop and development of  Hemp  products since the legalization of Hemp in the Farm Act.  And, the conference provided sessions with detailed information on how to start up a tribal economic development division.    There were also interesting sessions on taking advantage of the Opportunity Zone Tax incentives, created by the Tax Cuts and Jobs Act, that offers new options for investment in economically distressed communities. Certain investors believe that the creation of Qualified Opportunity Zones will be significant.
Our firm is currently active in drafting Hemp production ordinances for clients and understanding the market for Hemp and Hemp products.  We also can help clients understand the Tax Cuts and Jobs Act and the potential offered by Opportunity Zones.   And, many of those attending RES are part of or have started Tribal 8(a) corporations.   Our firm has experience in this area as well, and won a significant case for a Tribal 8(a) that had been terminated, by reversing the agencies  decision.  Please let us know if we can assist you with tribal 8(a) or individual 8(a) issues in some way.  We discovered at the conference that many Native 8(a) applications had been lost by SBA after the government shut down.  We would very much like to assist you, if you have similar 8(a) questions or concerns.
We offer consultation and legal services for tribal owned enterprises, contractors, and other businesses in Indian Country. We can assist you with the SBA 8(a) process, understanding federal program requirements, applying for government contracts, and legal issues that arise from venturing with non Native Corporations.
In addition we can help with:
  • 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

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.

 

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

The Long Awaited Mueller Report is Out: What it Reveals

 
It has been six hundred and seventy six days about since Robert Mueller began his report, in a secluded office in Southwest Washington, D.C.  The report has been completed and turned into Attorney General William Barr on a late Friday afternoon. It already reveals a lot, while the battle is just beginning on how much of the report will be available for review. Speculation is the report may kick up a political fire storm, but here is what we know so far. David Kris, a former Justice Department national security division chief was quoted with the best line. “I think if you took it all in in one day, it would kill you. It’s simply too much.”
Trump’s Campaign:  Mueller first went after key people in the Trump campaign, and successfully got indictments, plea agreements and convictions: Mueller began by alleging that the president’s campaign had been led by people who had engaged in serious crimes, i.e. Paul Manafort, Rick Gates and George Papadopoulos who was one of 14 Trump associates who had contact with Russian nationals during the campaign and transition. Mueller later alleged, Russian hackers accessed the Democratic Congressional Campaign Committee and the Democratic National Committee.
Mueller’s plea deals emphasized like former Security Advisor Michael Flynn’s, that over and over those surrounding the President downplayed their dealings with Russia. Flynn claimed he and the Russian Ambassador Sergey Kislyak did not discuss Obama-era sanctions directed at the Kremlin, when in fact they had.
Trump’s Lawyer:  Mueller’s investigation has spun off investigations in at least three U.S. Attorney’s offices.  And, one resulted in the guilty plea of Trump’s lawyer Michael Cohen, for tax evasion, bank fraud and campaign finance violations. Cohen, threw his longtime client under the proverbial bus, testifying that all these activities were directed by Trump. The Cohen case then lead to an investigation of Trump’s inaugural festivities.
Was there collusion with Russia?  What Mueller has said on this topic was related to Roger Stone, and claims he lied about efforts he made to get information to the Campaign about the hacked emails obtained by the Russians.   Mueller’s Court filings revealed that Manafort released 2016 polling data to the Russians that had ties to Russian intelligence. But Manafort was not charged with conspiring with Russia. Nonetheless, the investigation reveals, Russia’s influence over the 2016 campaign, repeated contact by Russians with Trump’s key aids and his now undisputed financial interest in a tower in Moscow.
It will be interesting to see the details in the final report. But what we know is Trumps woes are far from over. Still to come are NY state investigations about the Trump Foundation and giving to his campaign instead of Charities, two law suits over Trump Hotels’ and activities with taking “emoluments” from foreign states, and the Federal prosecution in NY over expenditures during his inauguration. We just have not heard the end of it yet.  Washington Post story

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.


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