United States: American Indian Law And Policy: 10 Things You Need To Know—December 2017

Congress returned from the Thanksgiving holiday with an intense workload that must be completed by the end of the year. Tax reform remains a focus, and the Republicancontrolled Congress is still committed to getting a final bill passed and sent to the President by the end of December. National tribal organizations are opposing both the Senate and House versions of the bill because they fail to include any meaningful tribal provisions that can spur economic development in Indian Country.

While tax reform cornered Congress's attention in November, time will need to be spent on funding for the federal government in December. Current government funding expires on December 8, and it is clear that Congress will need to pass another stopgap spending bill—the only question is for how long. The optimistic view is that Congress will pass a shortterm spending bill to fund the government through December with the hope of passing an omnibus appropriations bill by year's end that would fund the government and programs through September 2018. The pessimistic view is that Congress will pass a Continuing Resolution through the first quarter of 2018 and spend the next few months debating spending levels.

Although President Trump's proposed budget for fiscal year 2018 included significant cuts to tribal programs, both the House and Senate versions of the Interior, Environment and Related Agencies Appropriations bills protect funding for tribal programs and provide some increases. In addition to tax reform and funding, Congress has a backlog of legislative priorities that it needs to tackle over the next weeks and months. The Trump administration also has a number of regulatory priorities and political vacancies that need to be focused on. Here are a few key issues that impact Indian Country:

  1. TribalSpecific Provisions Generally Left Out of Key Tax Reform Proposals
  2. Senate Revives Threats to Repeal Portions of the Affordable Care Act; Special Diabetes Program for Indians Passes House
  3. Efforts to Revise the FeetoTrust Regulations
  4. Indian Trader Regulation Comments In; Prospects for a Final Regulation Dim
  5. U.S. Supreme Court Hears Oral Arguments in Patchak 2.0 Case
  6. Latest News in Tribal Water
  7. A Future for Tribal Coal?
  8. No Longer Home Alone at the Department of the Interior, but Still Waiting for Important Political Appointees to Arrive
  9. Democrats and Republicans Leaving the D.C. Scene; Latest Retirement Announcements
  10. Overview of Bills Pending in Congress that Impact Indian Country

TribalSpecific Provisions Generally Left Out of Key Tax Reform Proposals

Before the Thanksgiving holiday, the House Ways and Means Committee and the Senate Finance Committee considered major tax reform legislation, achieving a step forward toward President Trump's goal of passing tax reform by the end of the year. Both the House and Senate proposals focused on individual and corporate tax rate cuts. On Thursday, November 16, the House passed H.R.1, Tax Cuts and Jobs Act by a 227205 vote. On Saturday, December 2, the Senate passed H.R.1 with amendments by a 5149 vote. The House and Senate will now go to conference to resolve differences between the two bills.

Both the House and Senate proposals fail to include any provisions advocated by tribal organizations for the purpose of helping stimulate tribal economic growth. The House bill included only one provision related to Indians: a provision that would exclude from an individual's income repayment of the person's loans pursuant to the Indian Health Service Loan Repayment Program. The Senate proposal includes only two provisions related to Indians: one provision adding Indian tribes to state qualified plans under the Low Income Housing Tax Credit and another modifying the tax treatment of Alaska Native Corporations and Settlement Trusts.

Given the lack of tribal provisions included in the congressional tax proposals, both the National Congress of American Indians (NCAI) and Native American Finance Officers Association (NAFOA) issued a   joint press release in opposition to the proposals and called on members of Congress to vote against both proposals until more tribal provisions are included. The additional provisions that the national tribal organizations would like to see included in the larger tax reform proposals are from H.R. 3138, the Tribal Tax and Investment Reform Act, which can be found here, and the companion bill in the Senate, S.1935, which can be found here.

Projections from the Joint Committee on Taxation indicate that the House and Senate tax proposals could add approximately $1.5 trillion over 10 years to the annual budget deficit. It will be important for Indian Country to pay attention to the tax proposals because of the impact the increased deficit could have on federally funded tribal programs. Congress's focus on enacting tax reform by the end of the year has diverted its attention from focusing on passing the fiscal year 2018 spending bills. Thus, Congress will be pressed for time as it attempts to pass the spending bills before the continuing resolution expires on December 8. On Saturday, December 2, the House Republicans released the text of a shortterm continuing resolution to fund the government through December 22. Congress will have to agree to an extension, or there could be a federal government shutdown.

Senate Revives Threats to Repeal Portions of the Affordable Care Act; Special Diabetes Program for Indians Passes House Threats to Repeal Portions of the Affordable Care Act;

The Senate version of tax reform includes a provision to eliminate the Affordable Care Act's individual mandate in an attempt to help offset the deficit increases from the rest of the bill by more than $380 billion. Although previous efforts to repeal the mandate have failed, repeal now appears more likely, given that the Senate passed the tax bill with the mandate repeal included. The Congressional Budget Office estimates that repeal of the mandate will cause more than 13 million individuals to lose their health care insurance.

A twoyear extension to the Special Diabetes Program for Indians passed the House earlier this month. H.R.3922, the Championing Healthy Kids Act,includes an extension for the Special Diabetes Program for Indians for fiscal years 2018 and 2019. The bill passed the House on November 3 and is now being considered by the Senate Finance Committee.

On November 8, the Senate Committee on Indian Affairs (SCIA) held a legislative hearing to receive testimony on S.465, the Independent Outside Audit of the Indian Health Service Act of 2017. This bill was introduced back in February in an attempt to improve the agency's budget, staffing and management. On November 9, the SCIA also hosted a roundtable on "Confronting the Crisis: the Opioid Epidemic in Indian Country." The roundtable was not recorded, but testimony from the hearing on S. 465 is available here.

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