USET SPF Policy and Legislative Affairs Discussion: Trump Administration and the 115 th Congress USET SPF 2017 Impact Week Meeting Arlington, VA February 6, 2017
Trump Agenda Reduce size of govt and govt spending Roll back executive action/ regulatory overreach and barriers Repeal and Replace Affordable Care Act Tax Reform Infrastructure Package Energy Development Roll back/renegotiate trade deals Immigration School choice
Trump Strategy The Art of the Deal The final key to the way I promote is bravado. I play to people s fantasies. People may not always think big themselves, but they can still get very excited by those who do. That s why a little hyperbole never hurts. People want to believe that something is the biggest and the greatest and the most spectacular. I call it truthful hyperbole. It s an innocent form of exaggeration and a very effective form of promotion.
Federal Hiring Freeze
Federal Hiring Freeze Cont. Across-the-board employment freeze Except: national security or public safety jobs National Health Service Corps is exempt Department discretion re: these categories OMB and OPM have 90 days to develop plan to reduce federal workforce through attrition
Federal Hiring Freeze Cont. Other Exemptions: Postal Service Seasonal and short-term temporary employees Internal career ladder promotions Conversions under certain recruitment programs Time limited positions like fellowships Armed Services Political appointees But what about IHS, BIA, DOI, USDA? USET SPF BOD will vote on resolution to exempt all Indian program employees this week.
Executive Action on Regulations Temporary Regulatory Freeze Issued via Executive Memorandum on January 20 th Must be directly approved by Trump Admin to move fwd Reducing Federal Regulations Executive Order For every new regulation proposed, the Dept. or Agency must identify two regulations for repeal
EPA Grants Freeze Agency directive to freeze all grants and contracts January Tribal Nations and organizations receive millions Guidance from regional employees: obligated $$ will continue to go out Admin: doesn t apply to state and Tribal assistance grants
Dakota Access Pipeline Jan. 18: Notice of Intent to Prepare EIS under the Lake Oahe crossing Jan. 24: Executive Order advancing pipeline and reconsideration of EIS Feb. 1: USACE initiated EO directives but maintains easement decision will made after a full review unclear what that means.
Federal Appointments As of February 6, 2017: 6 confirmed 29 awaiting confirmation 657 awaiting nomination Including IHS Director and Under Secretary for Indian Affairs
Cabinet Nominees
Rep. Ryan Zinke Interior Secretary Montana Republican, Veteran Armed Forces and Natural Resources Committees Key Issues: Preservation of public lands Energy and minerals policy Reduce size of Federal Gov t Balanced Budget amendment Indian Country: Little Shell Band of Chippewa Blackfeeet Water Compact
Rep. Tom Price, HHS HHS Secretary Georgia Republican, Physician Budget and Ways and Means Committees Key Issues: ACA Critic Limited Government Market-based healthcare Indian Country: Medicaid block grants Medicare privatization
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Tax Reform Trump 100 Days Contract: Middle Class Tax Relief and Simplification Act Grow the economy 4%/year Tax reduction and simplification Middle class families = 35% tax cut Reduce tax brackets from 7 to 3 Corporate tax rate lowered to 15% from 35% Paid for by: Reducing or eliminating most deductions for the wealthy and businesses One-time 10% tax on overseas corporate $$
Tax Reform Cont. Senate Finance and House Way & Means both committed to tax reform package Conversations happening now Goal to release legislative package by August 2017 Tribal Tax Reform Principles focus on parity: 1. provide Tribal governments with direct access to federal tax credit programs 2. reduce tax and regulatory burdens placed on reservation activity from federal, state and local governments 3. align federal tax law and policy with the U.S. Constitution s acknowledgment of Tribal Nations as sovereign governments Reflective of USET SPF Comprehensive Tax Reform Platform and partnerships with other Tribal Nations and Orgs
Infrastructure Package Trump 100 Days Contract: American Energy and Infrastructure Act $1 trillion in infrastructure investment over 10 years Lift restrictions on energy production USET SPF Infrastructure Requests Include Indian Country in Infrastructure spending $50 billion unmet need in Indian Country Indian Country Infrastructure Considerations: 1. Infrastructure Investment Bank 2. Enhanced Tribal Govt access to long-term capital 3. Expanded telecommunications Infrastructure Improve federal infrastructure permitting
Economic/Energy Development Economic sovereignty is essential to Indian Country s ability to be self-determining and self-sufficient. Priorities: 1. Tribal self-determination and control of natural resources and energy assets 2. Remove legal and regulatory barriers to energy and economic development in Indian Country 3. Improve access to energy transmission 4. Ensure energy development is not taxed by other govts
ACA Repeal/Replace Patient Protection and Affordable Care Act (ACA) Possible partial repeal via budget reconciliation Individual mandate Employer mandate Subsidies ACA Contains: Indian Health Care Improvement Act Permanently reauthorized via ACA after 10 year wait Provides new & modern authorities for Indian Health System Indian-specific provisions IHS Payor of Last Resort Medicare Part B billing IHS/Tribal-sponsored coverage is non-taxable
Health Reform/Replace Legislation Possible Medicaid Reform Block grants to states Per capita allotments to states Sunset Medicaid expansion Indian Country & Medicaid Bill for services provide through IHS/Tribal facilities 13% of total funds received by IHS Federal government pays 100% cost (100% Federal Match Assistance Percentage (FMAP) Protections for AI/AN enrollees No co-pays, work requirements, mandatory managed care
Health Reform/Replace Legislation/Cont. Possible IHS Reform Legislation introduced last Congress: S. 2953, IHS Accountability Act Would make reforms to the Indian Health Service, including: Expanded hiring and firing authority» Secretary may waive Indian Preference Recruitment and retention incentives Centralized credentialing Tribal consultation in hiring top Area Office and Service Unit Staff GAO reports on staffing and professional housing OIG investigations into patient deaths H.R. 5406, Helping Ensure Accountability, Leadership, and Trust in Tribal Healthcare (HEALTTH) Act Changes to Purchased/Referred Care (PRC)
Federal Spending
Fiscal Year 2017 FY 2017 status: Continuing resolution through April 28, 2017 Possible: President Trump Budget Request for FY 2017 FY 2017 Previous Marks
Conservative think tank FY 2018 Heritage Foundation Blueprint reduces federal spending by $10.5 trillion over the next 10 years Significant reductions in discretionary funding and program cuts Elimination of National Endowments for the Arts and Humanities, and Corporation for Public Broadcasting privatized
FY 2018 Cont.
Other Outstanding Indian Country Priorities Tribal Labor Sovereignty Act NAHASDA Reauthorization TLOA Reauthorization VOCA Self-governance Title IV Tribal Energy Bills Carcieri Fix
Tribal Labor Sovereignty Act Tribal Labor Sovereignty Act (S.63) Amends National Labor Relations Act to explicitly exempt Tribal Nation govts and enterprises Approved by the U.S. House of Representatives in 114 th Congress Vote of 249-177, including 24 democrats Mark-up in SCIA on February 8 th
NAHASDA Expired Sept. 2014 but has received continued funding Widespread support in House and Senate but
STOP Act
USET SPF Letter re: Initial Priorities for New Administration 1. Economic Development 2. Tax Reform 3. Health Reform (Preserve IHCIA, ACA Indian provisions, Medicaid) 4. Infrastructure Funding and Permitting 5. Trust Modernization
SUPREME COURT and LITIGATION
Justice Antonin Scalia (March 11, 1936 February 12/13, 2016)
ELEVEN SUPREME COURT CASES ANALYZED 2005-2014 - Michigan v. Bay Mills Indian Community (2014) - Adoptive Couple v. Baby Girl (2013) - Match-E-Be-Nash-She-Wish Band v. Patchak (2012) - Salazar v. Ramah Navajo Chapter (2012) - United States v. Jicarilla Apache Nation (2011) - United States v. Tohono O'odham Nation (2011) - United States v. Navajo Nation (2009) - Carcieri v. Salazar (2009) - Plains Commerce Band v. Long Family Co. (2008) - Zuni Public School District v. U.S. Dept. Educ. (2007) - Wagnon v. Prairie Band Potawatomi (2005) 33
Anti-Native Position Pro-Native Position Total Native % Lost Native % Won Alito 10 0 10 100% 0% Thomas 9 2 11 82% 18% Roberts 9 2 11 82% 18% Breyer 9 2 11 82% 18% Kennedy 8 3 11 73% 27% Scalia 8 3 11 73% 27% Ginsburg 6 5 11 55% 45% Kagan 1 3 4 25% 75% Sotomayor 1 5 6 17% 83% 34
An Old Court Ginsburg 83 Kennedy 80 Breyer 78 Scalia 79 when passed
Neil Gorsuch Supreme Court Nominee 10th Circuit Judge Originalist 49 years old
Supreme Court Nominee
Current Cases Lewis v. Clarke Lee v. Tam
Lewis v. Clarke Personal injury tort. Tribal employee sued in their individual capacity for torts committed within the scope of their employment.
We have never, for example, specifically addressed (nor, so far as we are aware, has Congress) whether immunity should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct. Justice Kagan Bay Mills
Lee v. Tam 1 st amendment and trademark case Simon Tam is seeking to register a mark on his band name The Sl*nts. The USPTO refused after finding that the mark is disparaging toward individuals of Asian ancestry. The Sl*nts are known as the first all-asian American dance rock band in the world.
Questions??