Category Archives: policy
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. 
WASHINGTON LEGISLATIVE UPDATE: OMNIBUS SPENDING BILL, TAX EXTENDERS, INTERIOR IMPROVEMENT ACT
Congress Passes $1.8 Trillion Spending MeasureAfter much debate and wrangling and some say a beaten down Congress on Friday December 18th, 2015 passed a $1.8 trillion package of spending and tax cuts with little rancor. Majority Leader, Senator Mitch McConnell (R-Ky) had promised there would be no shutdown or default this year. And was quoted as saying “By any objective standard, I think, the Senate is back to work”. Speaker Ryan was credited with winning a majority of Republicans votes for the huge spending and tax package, although House Democratic Leader Nancy Pelosi (D-CA) insisted that Republicans came on Board only because of a recently added provision to end a 40-year ban on crude oil exports. And, at a recent news conference President Obama said, “we’ve gotten kind of used to last-minute crises and shutdown threats and so forth…this is a messy process that doesn’t satisfy everybody completely, but it’s more typical of American democracy. And I think that Speaker Ryan deserves a role in that”.
Representative Tom Cole (R-Ok) managed much of the floor debate for Republicans and said that all lawmakers could find items to support or oppose in such a huge spending and tax-break package. As an end result, the period of belt-tightening ended in Washington the spending measure for 2016 provides a $66 billion increase in Federal outlays above previously agreed-upon limits, divided equally between military and nonmilitary programs. The White House and congressional Democrats said they had thwarted the Republicans’ main policy goals, including efforts to cut off government financing for Planned Parenthood and put restrictions on Syrian and Iraqi refugees, while securing a number of their own priorities, including tax benefits for working Americans and to promote renewable energy. And Speaker Ryan, who was the former Chairman of the tax-writing Ways and Means Committee pushed through the major tax-break package that many Democrats opposed.
The House approved the Tax Breaks on Thursday Dec. 17th and the spending measure on Friday with a vote of 316 to 113, with 150 Republicans and 166 Democrats supporting the bill. The Senate then voted to end the debate on the overall legislation, dispensed with several procedural steps, and approved the package, 65 to 33.
Spending Bill provisions impacting Tribal Programs:
- 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:
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Senate Committee on Indian Affairs Passes S. 1879,
the Interior Improvement Act
On Wednesday, December 2, 2015 the Senate Committee on Indian Affairs (SCIA) passed the Interior Improvement Act, S. 1879 that was introduced by Chairman John Barrasso (R-Wy) in July of this year. The bill improves the Department of Interior’s trust land acquisition process by codifying and streamlining portions of the process, reaffirming the Secretary’s authority to take land into trust for all federally recognized tribes and reaffirms the statutes of lands already taken into trust. The Chairman added manager’s amendments that were technical in nature and did not stray far for the original legislation. Assistant Secretary Washburn has supported the legislation saying at most it codifies existing practices at the department, and does not disrupt the current land into trust review and will expedite the process for many trust lands applications. This bill now sets the mark for legislation in the next Congress, and indicates that Congressional movement to fix the US Supreme Court Decision (Carcieri v. Salazar in 2009) is closer at hand.
NEW HIGHWAY BILL BREAKS THE DEADLOCK
After 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;
- 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?
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.
Native Law Policy 