United States: Legislative Opportunities For Tribal Governments Under The Trump Administration

Kathleen M. Nilles, Philip "Phil" Baker-Shenk and Nicole M. Elliott are all Partners and Kayla N. Gebeck is a Public Affairs Advisor in our Washington DC office.

HIGHLIGHTS:

  • While it always is important to defend tribal sovereignty and protect the gains tribes have achieved, it also is important for tribal advocates to take advantage of opportunities for advancing tribal government parity that the new Trump Administration will present.
  • Three key legislative opportunities made possible by the new Administration's promises and priorities are worth discussion.

With the advent of a Republican-controlled White House and Congress, many who work in Washington, D.C., on behalf of Indian tribes may be tempted to adopt a defensive posture. But while it always is important to defend tribal sovereignty and protect the gains tribes have achieved, it also is important for tribal advocates to take advantage of opportunities for advancing tribal government parity that the new Administration will present. Below is an overview of three key legislative opportunities made possible by the new Administration's promises and priorities.

1. Tribal Labor Sovereignty: Restoring the Treatment of Tribal Governments as Governmental Employers

During the 114th Congress, Rep. Todd Rokita (R-Ind.) introduced H.R. 511, the Tribal Labor Sovereignty Act (TLSA), to restore nearly 70 years of precedence in which the National Labor Relations Board (NLRB) interpreted the National Labor Relations Act (NLRA) to include tribes and on-reservation tribal government enterprises within its definition of sovereign governmental employers, thus excluding tribes from the NLRB's jurisdiction. Rokita's bill passed the House on Nov. 17, 2015, by a vote of 249-177, and its Senate companion, S. 248, introduced by Sen. Jerry Moran (R-Kan.), is pending floor consideration.

Prior to this summer's recess, Sen. Moran offered an amendment to include the TLSA in the 2017 National Defense Authorization Act, but the amendment was blocked by a Democratic objection to his unanimous consent request. While the FY 2017 House Labor-Health and Human Services appropriations bill includes similar language, efforts are underway to secure the support of a sufficient number of Democratic senators to enable a successful vote on the TLSA as a stand-alone bill during the lame-duck session.

If tribes are unable to muster enough Senate Democratic votes during the 114th Congress, it is expected that Republican leadership will succeed in securing passage and signing it into law next year. Earlier this year, the GOP in its national Republican Platform called for tribal governments and their enterprises to be recognized as governmental employers which are exempted by NLRA.

For any questions concerning TLSA, please contact Phil Baker-Shenk or Kayla Gebeck.

2. Tax Reform: Treatment of Tribal Governments on Par with State Governments

In June, Republicans led by House Speaker Paul Ryan (R-Wis.), released a tax reform blueprint calling for a number of changes to the nation's tax code including, but not limited to, the simplification of existing income tax brackets, reducing corporate tax rates and restructuring the international tax code by adopting a destination-based consumption tax. An overriding goal of the reform, which aligns with those of President-Elect Donald Trump's priorities, is to level the playing field for American businesses.

While Trump was at odds with Speaker Ryan throughout his presidential campaign, the President-Elect has adjusted many of his tax priorities to align with the House GOP tax-reform blueprint that likely is to be introduced by House Ways and Means Chairman Kevin Brady (R-Texas) in early 2017. Brady has touted the bill as being pro-growth and pro-employment. In order to balance the rate reduction and simplification goals, the House package likely is to include the repeal of many special interest provisions. The Senate also is committed to Tax Reform (on a bipartisan basis), but it is less clear what the Senate bill will contain.

At this juncture, without an introduced bill, no one knows for sure how the bill will be paid for and what special tax credits and deductions are likely to be repealed. Potential tax measures on the chopping block include the low-income housing credit, deductions for state and local taxes, deductions for interest on business loans, some forms of tax-exempt financing (e.g., private activity bonds) and certain tax measures associated with the Affordable Care Act (ACA).  

A key member of the Trump transition team for tax reform and other issues is Rep. Devin Nunes (R-Calif.) who earlier this year introduced H.R. 4377, the American Business Competitiveness Act, to simplify business taxation and pave the way for a territorial system of international taxation. Some fear this proposal may come under scrutiny by the World Trade Organization. It is unclear how tribal governments and tribal enterprises would be able to preserve their present-law tax immunities under this new system.  

As Congress proceeds, it is important that tribal priorities are not only preserved, but advanced. A key number of important provisions concerning tribal government parity were embedded in a bill introduced by Rep. Ron Kind (D-Wis.) earlier this year. H.R. 4943, the Tribal Tax and Investment Reform Act of 2016, would amend the Internal Revenue Code of 1986 to treat Indian tribal governments in the same manner as state governments with respect to bond issuance, excise taxes, pension and employee benefit plans. The bill also would treat tribal foundations and charities the same as other government-controlled charities, give tribal child support enforcement agencies equal access to the federal parent locator service and federal tax refund offsets, and recognize the determinations of tribal adoption agencies for adoption tax credit purposes.

The Native American Finance Officers Association and the National Congress of American Indians (NCAI) also have advocated for other needed corrections, such as the repeal of the "kiddie tax" penalty on tribal financial distributions to tribal members, governmental parity for tribes under proposed federal legislation to facilitate the collection of state taxes on mail-order and internet sales transactions, and the extension of economic incentives for investment and job creation in Indian Country. Tax Reform presents an opportunity to address all of these issues if they are framed in a manner that is consistent with the priorities and guiding principles of the Trump Administration and Republican-controlled Congress.

For any questions concerning Tax Reform, please contact Kathleen Nilles or Kayla Gebeck.

3. Affordable Care Act: Repeal and Replace

A key component of the Trump campaign was to repeal and replace the Affordable Care Act (ACA). Among the first decision federal policymakers will face in 2017 is whether to repeal, retain or replace the current law. Here is an overview of the likelihood of several scenarios:

Repeal: It is unlikely that the ACA will be fully repealed for several reasons. While the Senate remains in Republican control, with an expected 52 votes, Republicans do not have a filibuster-proof majority and likely may need some compromise. Instead, Republican leadership is expected to pursue partial repeal of the ACA through the budget reconciliation process, which allows for expedited consideration of certain tax, spending and debt limit legislation that can be passed by a simple majority without being subject to a filibuster. Some provisions that do not have a budgetary impact may be trickier for the Republicans to repeal or amend as Senate rules prohibit inclusion of provisions that do not have a budgetary impact in budget reconciliation legislation. Democratic opposition to any effort to repeal, not surprisingly, is mounting.

Retain: While not often openly discussed, there are a number of ACA provisions that many Republicans support, such as prohibiting the denial of health insurance coverage because of preexisting conditions and allowing children to stay on their parent's plan until age 26. In addition, it is unclear what the Republican appetite will be for repealing certain coverage provisions without a period of transition and a solid replacement proposal.

Replace: There is no agreement yet between the House, Senate and the incoming Trump Administration on exactly what a "replace" option will look like. It is crucial that tribal governments engage early with policymakers to address widespread concern over the ACA's employer mandate which currently applies to tribes. While it is likely that this provision will be repealed, some of the replacement options likewise will impact tribal government employers. In addition, it is critical that tribes prepare to address repeal-and-replace options that have widespread impact, such as rolling back Medicaid expansion, block grants to states to fund Medicaid and a possible threat to repeal the Indian Health Care Improvement Act which was reauthorized in the ACA. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions