Category Archives: tribal 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.

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.

 

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

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.


DC Circuit Court affirms land into trust for Buena Vista Rancheria in Amador County v. Dept of Interior

Here is the unpublished opinion in Amador County v. Dept. of Interior: CADC Unpublished Opinion Here are the briefs.

via D.C. Circuit Affirms Interior’s Indian Lands Determination on Buena Vista Rancheria Trust Parcels — Turtle Talk

US House Committee on Natural Resources Press Release: Tribal leaders and their advocates are embracing a once-controversial Indian land bill.


WASHINGTON, D.C., October 25, 2017
 –

Today, the Subcommittee on Indian, Insular and Alaska Native Affairs held a legislative hearing on H.R. 215, the “American Indian Empowerment Act of 2017.” Introduced by Chairman Emeritus Don Young (R-AK), the bill authorizes federally recognized tribes to lease and regulate their own lands and eliminate federal government restrictions that interfere with economic development.

“Today’s hearing is a step in the right direction for getting the federal government out of the way of America’s tribes,” Rep. Young stated. “This legislation gives tribes a critical tool to leverage when determining their futures and planning for responsible resource and infrastructure development of their lands. The ‘mother may I approach’ of the federal government – which has created endless roadblocks and costly bureaucratic hurdles – has often stood in the way of uplifting and empowering our tribes. It must change, which is why I’m committed to exploring new ideas and new legislation that gives tribes the freedom and flexibility they deserve on their lands.

Acting Assistant Secretary for Indian Affairs at the Department of the Interior (DOI) John Tahsuda testified that Indian tribes in government-to-government meetings have expressed the need “to grant tribes more autonomy and independence over their resources.”

The Department has “heard interest and requests for the Department [of the Interior] to delegate more authority to tribes, allowing them to make their own decisions on their own lands,” Tahsuda stated. [W]e are interested in accessing additional tools in our toolbox to better empower Indian country.”

A favorite saying at the Indian Land Tenure Foundation (ILTF) goes, “Nothing says sovereignty like asking for the Secretary’s permission!” according to ILTF President Cris Stainbrook.

[T]he paternalistic relationship with the federal government is continued and has continued for the past 130 years,” Stainbrook said.[V]irtually every land activity by Native nations that now requires the lengthy, time consuming Secretarial approval could be shortened by months, if not years. The many commercial development projects which dissolved because of the length of time in gaining approvals could now get down much more expeditiously.

Vice President of the Navajo Nation Jonathan Nez stressed the need for Indian land to be treated as “Tribal Nation land” rather than federal land, as his tribe has some of the highest rates for both lack of electricity and access to running water. These issues can’t be addressed without additional approval from DOI and other regulatory permits.

[O]ur land should be treated as ours and we should be allowed to manage and develop with minimal interference from other governments, whether they be federal, state or local,” Nez stated. “If we embrace this important idea, it can help the Navajo Nation in areas such as housing, utility infrastructure buildout, or economic development by eliminating unnecessary and duplicative bureaucratic reviews.”

Economic development is an important goal for tribes, and granting them the ability to capitalize on their own resources without federal impediments will go a long way toward improving socioeconomic conditions for a number of tribal nations,” Executive Vice President of Compass Lexecon and Research Affiliate at the Harvard Project on American Indian Economic Development Eric Henson added. 

[T]he ‘American Indian Empowerment Act’ is an opportunity to expand tribal self-governance by regaining complete control over our tribal land use,” Senior Council Member of the Lummi Nation Henry Cagey said. “That, in my view, is what tribal sovereignty is all about.”

Click here to view full witness testimony.

Indianz.com article on hearing

Congress approves yet another short-term extension for Indian diabetes program

Posted: Monday, October 9, 2017  Indianz.com  

Congress has renewed the Special Diabetes Program for Indians but only for three months, the shortest extension on record.The program, which has contributed to a reduction in diabetes in Indian Country, was due to expire on September 30. It was saved, albeit on a very temporary basis, by a provision in H.R.3823, the Disaster Tax Relief and Airport and Airway Extension Act, which President Donald Trump signed into law barely a day before the deadline.The provision, found in Section 301 of the measure, ensures that the IHS can distribute grants to tribes, Alaska Natives and urban Indians for the next three months. The program was funded with $37.5 million, which represents the usual level of funding.But while the new law averts a temporary crisis, the National Indian Health Board pointed out that it expires on December 31. The organization has been lobbying for longer extensions in order to maintain Indian Country’s successes in preventing and treating diabetes.”SDPI supports treatment and prevention in American Indian and Alaska Native communities impacted by type 2 diabetes at a rate of 15.1 percent, prevalence higher than any other minority population in the United States,” an October 2 letter to key members of Congress stated. “SDPI has resulted in a 54 percent reduction in kidney failure rates among Native American populations between 1996 and 2013.”American Indian (AI) and Alaska Native (AN) adults suffer from the highest rates of diabetes in the United States. Source: Centers for Disease Control and Prevention
According to the Centers for Disease Control and Prevention, 14.9 percent of Native men over the age of 18 have been diagnosed with diabetes, the highest among all racial and ethnic groups in the United States. And 15.3 percent of Native women suffer from the condition, again the highest rate in the nation.Grants from the SDPI have kept the rates from growing even higher, according to tribal advocates and key lawmakers. Yet Congress has been reluctant to authorize long-term extensions or provide more funding for the programAs a result, tribes have had to settle for two-year and one-year extensions, instead of the five-year extensions that were common in the past. The three-month extension is the shortest so far.There are efforts to attach SDPI to the Children’s Health Insurance Plan, an otherwise popular programthat expired at the end of September. A two-year extension has been included in H.R.3922, the Community Health And Medical Professionals Improve Our Nation Act, or the CHAMPION Act.H.R.3922 was approved by the House Committee on Energy and Commerce at a markup on October 4. It authorizes $150 million in grants for each of the two years, or the same level of funding in the current program.That same day, the Senate Finance Committee held a markup and approved S.1827, the Keep Kids’ Insurance Dependable and Secure Act (KIDS Act), to reauthorize the Children’s Health Insurance Plan. The bill does not include SDPI at this point.Separately, Rep. Norma Torres (D-California), the top Democrat on the House Subcommittee on Indian, Insular and Alaska Native Affairs, has introduced H.R.2545 to renew SDPI for five years. Her bill would also increase funding levels in the coming years.A newly-introduced bill, H.R.3917, reauthorizes the program for just two years. It maintains the $150 million funding level and takes into account the three-month extension that was just signed into lawwith H.R.3823.

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
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