USET SPF Policy and Legislative Affairs Discussion: Trump

Administration and the 115th

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 appointeesBut 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 20th

• 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

Interior Secretary

Rep. Ryan Zinke 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

HHS Secretary

Rep. Tom Price, HHS

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 governments3. 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 PackageTrump 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 LegislationPossible 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 2017FY 2017 status: Continuing resolution through April 28, 2017

Possible: President Trump Budget Request for FY 2017

FY 2017 Previous Marks

FY 2018Heritage Foundation

• Conservative think tank

• 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 114th Congress

• Vote of 249-177, including 24 democrats

– Mark-up in SCIA on February 8th

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

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- 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)

Anti-NativePosition

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%

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An Old Court

• Ginsburg – 83• Kennedy – 80• Breyer – 78

• Scalia 79 when passed

Supreme Court Nominee

• Neil Gorsuch

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

• 1st 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??