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Our firm represented a tribe in a land claim case in which we persuaded the federal government to intervene on behalf of the tribe. Canadian St. Regis Band of Mohawk Indians v. State of N.Y., Nos. 82-CV-783, 82-CV-1114, 89-CV-829 (N.D.N.Y.)

General Memorandum 15-033

General Memorandum 15-033
Summary of 113th Congress Public Laws and Final Executive Actions

In this Memorandum we summarize legislation enacted into law by the 113th Congress (2013-2014) and selected final Executive agency actions of specific interest to American Indian and Alaska Native tribes and organizations during that same time period. Where applicable, we cross reference our General Memoranda on those laws and actions.

While the 113th Congress was generally unproductive in terms of enacting major legislation, several bills of particular importance to tribes were enacted and with bipartisan support – the Violence Against Women Act tribal amendments, Tribal General Welfare Exclusion Act, and Stafford Act tribal amendments. In addition, as authorized in 2008, Congress awarded Congressional Gold Medals to 33 tribes in recognition of their members who served as Code Talkers during World War I and World War II. Summaries of those and other public laws follow:

PUBLIC LAWS

VAWA Enacted with Tribal Jurisdiction Provisions, PL 113-4. Signed March 7, 2013, the Violence Against Women Act (VAWA) reauthorization legislation (Act) affirms the inherent power of participating tribes to exercise "special domestic violence jurisdiction" over non-Indians with certain ties to the tribe who are accused of committing an act of domestic violence or dating violence, or of violating a protection order, within the Indian Country of the participating tribe. As a corollary to that expanded jurisdiction, the Act guarantees certain rights to defendants in tribal court, including all of the rights under the Indian Civil Rights Act and the right to a trial by an impartial jury that "reflect[s] a fair cross section of the community" and does not "systematically exclude any distinctive group in the community, including non-Indians." Domestic violence defendants will also have the right to file a petition for a writ of habeas corpus in federal court.

The Act further amends the federal domestic violence and stalking statute to provide that for the purposes of full faith and credit (the recognition and enforcement by one court of an order made by a different court), tribes shall be considered to have full civil jurisdiction to issue and enforce protection orders over anyone within Indian Country. The Act also contains special rules for Alaska that provides that the expanded jurisdiction shall only apply to the Indian Country of the Metlakatla Indian Community, Annette Islands Reserve (see below regarding repeal of this provision) (See our General Memorandum 13-023 of March 1, 2013.)

Alaska Safe Families and Villages Act, PL 113-275. Signed on December 18, 2014, this Act amended the Violence Against Women Act to repeal the provision that had specifically excluded tribes in the State of Alaska (other than Metlakatla) from the expanded tribal jurisdiction provisions passed as part of the VAWA reauthorization. PL 113-275 does not contain the more expansive tribal jurisdiction provisions of S 1474 as originally introduced by Senator Begich (D-AK) as the Alaska Safe Families and Villages Act. (See our General Memorandum 14-097 of December 12, 2014.)

Tribal General Welfare Exclusion Act, PL 113-168. Signed on September 26, 2014, the Act for the first time codifies the Indian canon of treaty and statutory construction, providing "[a]mbiguities in [the new law] shall be resolved in favor of Indian tribal governments and deference shall be given to Indian tribal governments for the programs administered and authorized by the tribe to benefit the general welfare of the tribal community." The Act requires the Secretary of the Treasury to establish a Tribal Advisory Committee (TAC) to advise the Secretary and suspends the audits and examinations of tribal governments and members of Indian tribes related to the provision or receipt of general welfare benefits until IRS field agents complete the training and education developed by the Secretary as advised by the TAC. (See our General Memorandum 14-079 of October 6, 2014.)

The new law follows on the heels of the Treasury Department and Internal Revenue Service's (IRS) June 3, 2014, issuance of Revenue Procedure 2014-35: Application of the General Welfare Exclusion to Indian Tribal Government Programs That Provide Benefits to Tribal Members. (See our General Memorandum 14-042 of June 13, 2014.)

Tribal Amendment to the Stafford Act, PL 113-2. Signed on January 29, 2013, the Disaster Aid Appropriations Act, 2013 includes a provision long sought by tribal governments – the authority to directly petition the President for a declaration of an emergency or major disaster. This provision is an amendment to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). Prior to this Act, tribes experiencing an emergency or major disaster had to rely upon a state governor to petition the President on their behalf. (See our General Memorandum 13-010 of February 1, 2013.)

Native American Code Talkers Congressional Gold Medals. On November 20, 2013, Congressional Gold Medals were awarded to 33 Indian tribes in recognition of their members who served as Code Talkers during World Wars I and II. The ceremony took place in the U.S. Capitol building. While the Navajo Code Talkers were awarded a Congressional Gold Medal as authorized by legislation enacted in 2000, the recognition for the additional 33 tribes was authorized in the Code Talkers Recognition Act of 2008 (PL 110-420). Further research may result in additional tribes receiving this recognition.

Workforce Innovation and Opportunity Act, PL 113-128. Signed on July 22, 2014, the Workforce Innovation and Opportunity Act reauthorized the Workforce Investment Act. The Act largely left unchanged the Native American Section 166 program – maintaining provisions regarding funding being distributed in a manner consistent with the Indian Self-Determination Act; authorization for tribes to consolidate their Section 166 funding through PL 102-477 programs; and maintenance of the Native American Employment and Training Council. Changes include an additional set of performance indicators and standards for the Native American program and changing grants from a two-year to a four-year period. Also reauthorized under PL 113-128 were the Adult Education and Family Literacy Act and the Vocational Rehabilitation Act. (See our General Memorandum 14-053 of July 11, 2014.)

Veterans Access, Choice, and Accountability Act of 2014, PL 113-146. Signed on August 7, 2014, the Act is designed to increase veterans' access to health care and was enacted in response to scandals involving lengthy wait times for appointments and falsified appointment records by Veterans Affairs (VA) employees. The Act allows eligible veterans to seek care at non-VA facilities, including IHS and tribal facilities, and provides $10 billion in mandatory appropriations to pay for such care. It provides for enhanced collaboration between the VA and the IHS including establishing performance metrics for assessing the implementation of the Memorandum of Understanding between the VA and IHS. It also seeks to increase VA capacity and oversight, providing an additional $5 billion in mandatory appropriations to increase hiring capacity and physical infrastructure.

Child Care and Development Block Grant Reauthorization, PL 113-186. Signed on November 19, 2014, the Act reauthorizes the Child Care and Development Block Grant (CCDBG) through FY 2020. The CCDBG provides funds to tribes and states to help low-income parents and those in job training and other education programs access child care. Tribes currently receive about $100 million annually in CCDBG mandatory and discretionary funds combined.

The Act makes significant changes to the program and provides an avenue by which tribes may receive an increased funding allocation and also utilize some funds for construction purposes. The Act provides that tribes are to receive a two percent allocation of funds, as opposed to the prior allocation of one to two percent (HHS always allocated two percent). However, if CCDBG funding increases the Secretary is authorized to exceed the two percent allocation for tribes. In addition, tribes may to apply to the Secretary to waive the prohibition on using funds for construction. The Act also modifies the previous law's provision regarding the development by the Secretary, in consultation with tribes, of licensing and regulatory requirements. (See our General Memorandum 14-089 of November 21, 2014.)

Preventing Sex Trafficking and Strengthening Families Act, PL 113-183. Signed on September 29, 2014, the Preventing Sex Trafficking and Strengthening Families Act focuses on protecting foster youth from sex trafficking, providing services to those who are victimized, and instituting new requirements designed to strengthen the opportunities available to foster youth. These provisions apply to state- and tribally- administered Title IV-E (Foster Care and Adoption Assistance) programs and will impact those tribes/tribal organizations (98 at last count) which have Title IV-E agreements with a state. The Act also extends the Adoption Incentives and the Family Connections grants programs and broadens opportunities for tribal child support enforcement programs. (See our General Memorandum 14-087 of November 7, 2014.)

Agricultural Act of 2014, PL 113-79. Signed on February 7, 2014, the Agricultural Act of 2014 (also known as the Farm Bill), includes a handful of new tribal provisions, three of which concern nutrition programs. The Act requires a feasibility study and report on tribal administration of various nutrition programs which is due in August 2015 (see our General Memorandum 14-084 of October 22, 2014 ). The Act also authorizes a demonstration project to include traditional and locally grown foods, where possible from Native farmers and ranchers, in the Food Distribution Program on Indian Reservations (FDPIR). Separate from the FDPIR is new authority, jointly overseen by the Secretary of Agriculture and the Commissioner of Food and Drugs, to allow the use of traditional foods in residential child care facilities, child nutrition programs, hospitals, clinics, long-term care facilities and senior meal programs. Significantly, the Act adds tribes as an eligible entity for Soil and Water Conservation Act programs. There are several tribal college provisions: tribal college programs for extension, research, equity, endowment and essential community facilities were reauthorized through 2017; the pool of qualified partners for tribal college research grants was expanded; and Keweenaw Bay Ojibwa and Muscogee tribal colleges were added to the list of 1994 Land-Grant Institutions, which now number 34.

Bipartisan Budget Act of 2013, PL 113-67. Signed on December 26, 2013, the Act was the result of an agreement between Senate and House Budget Committee Chairs Murray (D-WA) and Ryan (R-WI) to raise the FYs 2014 and 2015 discretionary spending caps set in the Budget Control Act of 2011. That set the stage for the Congress to enact FYs 2014 and 2015 appropriations bills which did not exceed the spending caps, and thus an across-the-board sequestration of discretionary funding was averted. (See our General Memoranda 13-111 of December 16, 2013 and 13-112 of December 19, 2013.)

Tax Increase Prevention Act of 2014, PL 113-295. Signed on December 19, 2014, the Tax Increase Prevention Act of 2014 (also known as the Tax Extenders Act) provided a one-year retroactive extension of more than 50 expired tax provisions. Provisions specific to Indian Country in the Act are the Indian Employment Tax Credit, Accelerated Depreciation for Business Property on Indian Reservations, and the Indian Country Coal Production Tax Credit. Also included are New Markets Tax Credit and the Low-Income Housing Tax Credit. (See our General Memorandum 14-100 of December 18, 2014.)

Special Diabetes Program for Indians, PL 113-93. Signed on April 1, 2014, the Protecting Access to Medicare Act is a temporary fix to prevent decreases in physicians' Medicare reimbursement rates. The Act includes other health provisions specifically: a one year extension (at current rates of $150 million per program, per fiscal year) of the Special Diabetes Program for Indians (Type 2) and the Special Diabetes Program (Type 1), funding the programs through FY 2015.

Tribal-Specific and Other Public Laws

Native American Veterans' Memorial Amendments Act, PL 113-70. Signed on December 26, 2013, the Native American Veterans' Memorial Amendments Act, provides the National Museum of the American Indian (NMAI) a more participatory role in the establishment of the National Native American Veterans' Memorial. The Act amends the Native American Veterans' Memorial Establishment Act of 1994 to authorize the NMAI, along with the National Congress of American Indians (NCAI), to select the design, raise funds and begin construction of a Memorial on the grounds of the NMAI. Prior law provided that the Memorial would be established within the interior of the NMAI building and that NCAI would be responsible for the design and fundraising duties.

Alaska Native Tribal Health Consortium Land Transfer Act, PL 113-68. Signed on December 26, 2013, the Act transfers by warranty deed 2.79 acres of federal land to the Alaska Native Tribal Health Consortium (ANTHC). In June 2013 the Indian Health Service had administratively transferred the land to ANTHC by quitclaim deed. The Act clarifies that ANTHC is not liable for any environmental contamination on or before the date the property was administratively transferred from the IHS by quitclaim deed.

Huna Tlingit Traditional Gull Egg Use Act, PL 113-142. Signed on July 25, 2014, the Act allows the Hoonah Indian Association to resume its subsistence activity of collecting glaucous-winged gull eggs in Glacier Bay National Park. The Act limits this activity to two times a year at five locations and states that it is considered a permissible use under the Alaska National Interest Lands Conservation Act. An annual harvest plan is to be jointly prepared by the Secretary of Interior and the Hoonah Indian Association.

Fond du Lac Band of Lake Superior Chippewa Non-Intercourse Act, PL 113-88. Signed on March 21, 2014, the Act allows the Fond du Lac Band of Superior Chippewa to lease, sell, convey, or transfer any land that it owns that is not in trust without further congressional approval. It ensures that the Non-intercourse Act (25 U.S.C. 177) does not interfere with the Tribe's ability to lease, buy, or sell its fee-land, thus facilitating an agreed upon land exchange between the Tribe and Carlton County, Minnesota.

Sandia Pueblo Settlement Technical Amendment Act, PL 113-119. Signed on June 9, 2014, the Act amends the T'uf Shur Bien Preservation Trust Area Act (PL 108-7) to require that if the land exchange required by PL 108-7 is not completed within 30 days of enactment, the Secretary of Agriculture is to transfer specified National Forest lands at the request of the Sandia Pueblo to the Secretary of the Interior to be held in trust. The National Forest land is to be left in its natural state. Following the transfer, the Secretary of Interior, with the consent of the Pueblo, is to transfer to the Secretary of Agriculture the Pubelo's la Luz tract and a conservation easement on the tract and grant a right-of-way for the Pedra Lisa trail in the Pedra Lisa tract.

Land Taken into Trust for the Shingle Springs Band of Miwok Indians, PL 113-127. Signed on July 16, 2014, the Act takes 40.8 acres of land formerly held by the Bureau of Land Management into trust for the Shingle Springs Band of Miwok Indians. Class II and II gaming under the Indian Gaming Regulatory Act is not permitted on the land taken into trust.

Pascua Yaqui Tribe Trust Land Act, PL 113-134. Signed on July 25, 2014, the Act transfers two parcels of land to the Pascua Yaqui Tribe to be held in trust—a ten-acre parcel of Bureau of Land Management land and a ten-acre parcel from Tucson Unified School District. The land taken into trust may not be used for gaming purposes. The Act addresses water rights issue on the land: the Tribe has retained rights or claim to water under State law for any land taken into trust; the federal government does not have reserved surface water or groundwater rights on lands taken into trust for the Tribe; and prohibited is the the forfeiture or abandonment of any water rights that are appurtenant to the lands taken into trust.

Gun Lake Trust Land Reaffirmation Act, PL 113-179. Signed on September 26, 2014, the Act reaffirms that the land taken into trust for the Match-E-Be-Nash-She-Wish Band of Potawatomi Indians described in the final Notice of Determination of the Department of Interior (70 Fed. Reg. 255596, May 13, 2005) is trust land. The Act is in response to a legal challenge to the trust status of the land.

Blackfoot River Land Exchange Act, PL 113-232. Signed on December 16, 2014, the Act ratifies a negotiated agreement among the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation, the allottees and the non-Indian landowners to resolve land ownership disputes that arose from the realignment of the Blackfoot River by the Corps of Engineers in the mid-1960s. The Act conveys certain non-Indian land in trust to the Tribes and allottees. Other trust land is conveyed to Blackfoot River Flood Control District No. 7 with the proceeds of the sale of these lands to compensate non-Indian landowners and for administrative costs of the Flood Control District.

May 31, 1918 Act Repeal Act, PL 113-262. Signed on December 18, 2014, the Act repeals the 1918 law which provided for the Secretary of Interior to set aside 120 acres in trust for a town-site purpose on the Fort Hall Indian Reservation. The town-site was not developed and the land eventually went into ownership by Bingham County. The Act repeals the 1918 Act and provides the Tribe first right of refusal to purchase land within the 120-acre town-site, with land purchased being held in trust. The Bureau of Indian Affairs estimates that approximately 111 acres will be placed back into trust.

Grand Portage Band Per Capita Adjustment Act, PL 113-290. Signed on December 19, 2014, the Act provides that a member of the Grand Portage Band of Lake Superior Chippewa Indians is not required to count as income payments received pursuant to a treaty-related agreement with the state of Minnesota to voluntarily restrict tribal hunting and fishing rights in territory ceded under the Treaty of September 30, 1854, in return for payments from the state. Payments are now estimated to be $1.6 million annually. The Act provides that such income shall not count against an individual's eligibility for Social Security Act program benefits unless the per capita payment exceeds $2,000.

Bill Williams River Water Rights Settlement Act, PL 113-233. Signed on December 16, 2014, the Act authorizes, ratifies and confirms the Hualapai Tribe's Big Sandy River-Plant Ranch Water Rights Settlement Agreement.

Federal Duck Stamp Act of 2014, PL 113-264. Signed on December 18, 2014, the Act increases from $15 to $25 the price for duck stamps required to hunt migratory waterfowl. Rural Alaskans (as that term is defined in section 803 of the Alaska National Lands Conservation Act) are allowed to take migratory waterfowl for subsistence uses without a duck stamp.

Funds acquired above the $15 amount are to be used to acquire easement for the conservation of migratory birds, although the Secretary may decrease the price if the increased fee results in a decrease in the funds placed in the Migratory Bird Conservation Fund. The Act requires new reporting requirements regarding the status of wetlands and refuges.

National Defense Authorization Act, 2015, PL 113-291. On December 19, 2014, the President signed the National Defense Authorization Act, 2015, as Public Law 113-291. Title XXX (30) of the Act contains a number of non-defense provisions, many of which had been free-standing bills and nine of which are tribal-specific or directly impact a tribe. Below is a summary:

Land Conveyance, Wainwrght, Alaska. Section 3001 authorizes the Department of Interior to sell 1,518 acres of land located in the Naval Petroleum Reserve to the Olgoonik Alaska Native Corporation. The surrounding land is owned by the Olgoonik Alaska Native Corporation who is working with the Air Force on contamination clean-up efforts.

Sealaska Land Entitlement Finalization. Section 3002 transfers approximately 70,000 acres of land in the Tongass National Forest to the Sealaska Native Corporation under the Alaska Native Claims Settlement Act. Sealaska describes categories of land as 490 acres of cultural significance with 76 sacred sites, 1,099 acres for potential renewable energy opportunities, and 68,486 acres for natural resource development.

Southeast Arizona Land Exchange and Conservation. Section 3003 authorizes the transfer of 2,400 acres of Forest Service land in southeast Arizona to Resolution Copper, a subsidiary of a foreign mining company. This legislation was strongly opposed by tribes because of its transfer to Resolution Copper of land sacred to the San Carlos Apache and other tribes.

Northern Nevada Land Conveyance. Section 3009(f) authorizes the Department of Interior to take into trust for the Te-Moak Indian Tribe of Western Shoshone Indians of Nevada 373 acres of land currently being administered by the Bureau of Land Management. The land may not be used for gaming purposes.

Bureau of Land Management Permitting Process. Section 3021 authorizes the Bureau of Land Management to charge a $9,500 fee (indexed for inflation in subsequent years) for applications for new oil and gas permits. The fees would extend to Indian trust mineral estate lands. The National Congress of American Indians has opposed the application of BLM permit fees to tribal lands.

Valles Caldera National Preserve. Section 3043 authorizes the creation of the Valles Caldera National Preserve in New Mexico. The Secretary of Interior is to consult with Indian tribes on the management plan for the Preserve, including the Pueblos of Jemez, Santa Clara and San Ildefonso. The management plan is to provide for protection of traditional cultural and places and for access for traditional cultural and customary uses. The National Congress of American Indians advocated that the land be returned to the ownership and control to the Pueblo of Jemez, that other Pueblos have access to the Valles Caldera, and for maintenance of the existing conservation easements held by Santa Clara Pueblo.

Land into Trust for Northern Cheyenne Tribe. Section 3077 directs the Department of Interior to take 932 acres of tribal fee lands into trust for the Northern Cheyenne Tribe. Under a revenue-sharing agreement Great Northern Properties will convey the subsurface rights to the Tribe in exchange for the Tribe's mineral interest in off-reservation lands. The Secretary will work with the Tribe on land consolidation and fractionation reports and the Northern Cheyenne Trust Fund will be transferred to the Tribe.

Excess Federal Property Land Transfer to Ho-Chunk Nation. Section 3078 authorizes the transfer of 1,500 acres of land within the former Badger Army Ammunition Plant to the Department of Interior to be held in trust for the Ho-Chunk Nation.

Public Access to Summit of Rattlesnake Mountain. Section 3081 directs the Department of Interior to provide public access to Rattlesnake Mountain in the Hanford Reach National Monument in Washington State, an action opposed by the Yakama people who oppose public access to the summit.

ADMINISTRATIVE ACTIONS – FINAL REGULATIONS

2014

Guidance on Consideration of Greenhouse Gas Emissions and Effects of Climate Change in NEPA Reviews. On December 24, 2014, the Council on Environmental Quality issued a revised draft guidance document for federal departments and agencies on how to incorporate consideration of climate change in the review of proposed federal actions pursuant to the National Environmental Policy Act. (See our General Memorandum 15-006 of January 9, 2015.)

Department of Interior Publishes Final Rule Eliminating the "Alaska Exception" for Taking Land into Trust. On December 23, 2014, the Department of Interior (Department) published a Final Rule that eliminates the "Alaska Exception" from the land-into-trust regulations found at 25 C.F.R. Part 151. As the Final Rule discusses at some length, the Department concluded that the Indian Reorganization Act, which authorizes land being taken into trust for tribes, did not include an Alaska exception, nor did the enactment of subsequent law (including the Alaska Native Claims Settlement Act) create an Alaska exception. The Final Rule discusses the discretionary aspect of the land-into-trust approval process, and that while there is no categorical exclusion for land-into-trust in Alaska, it will be governed by the broad discretion the Department has to approve or deny those applications. (See our General Memorandum 15-002 of January 7, 2015.)

DOJ Issues Principles for Working with Tribes. On December 12, 2014, the Department of Justice issued a set of guidelines for working with federally recognized Indian tribes.
The guidelines lay out overarching principles: commitment to a government-to-government relationship; respect for tribes' inherent sovereignty; support for the United Nations Declaration on the Rights of Indigenous Peoples; and commitment to tribal self-determination and long-term strengthening of tribal nations. (See our General Memorandum 14-095 of December 12, 2014.)

FBI Rule on Tribal Criminal Justice Agencies Access to Federal Criminal Background Check Database. On November 20, 2014, the Federal Bureau of Investigation published a Final Rule to allow tribal criminal justice agencies access to the National Instant Criminal Background Check System in order to conduct background checks on prospective gun buyers. The Final Rule gives tribal criminal justice agencies an important tool in their efforts to improve safety on Indian reservations and reduce violent crime. (See our General Memorandum 14-092 of December 5, 2014.)

Report on Native American Children Exposed to Violence. In November 2014 the Attorney General's Advisory Committee on American Indian and Alaska Native Children Exposed to Violence released its report and recommendations Ending Violence so Children Can Thrive (Report). The Report came about at the recommendation of the Attorney General's National Task Force on Children Exposed to Violence. The Report draws not only on the hearings leading to this Report but also from the reports of the National Task Force on Children Exposed to Violence and the Indian Law and Order Task Force. Among the many recommendations are to provide tribes with full criminal jurisdiction over all persons who commit crimes against Native children in Indian Country; to provide mandatory base funding for programs affecting children exposed to violence including tribal law enforcement and justice services; for the federal executive and legislative branches to work to ensure compliance with the Indian Child Welfare Act (the Justice Department subsequently announced an initiative to help improve ICWA compliance); reform of and increased funding for the juvenile justice system as it pertains to Native children; and support for the Indian Law and Order Commission recommendation regarding the need to remove barriers that inhibit the ability of Alaska Native Tribes to exercise criminal jurisdiction.

DOL Rule on Minimum Wage Requirement for Federal Contractors. On October 7, 2014, the Department of Labor issued a Final Rule pursuant to the Executive Order 13658 issued on February 12, 2014, establishing a minimum wage for federal contractors and subcontractors. The Executive Order and the Final Rule specifically exclude Indian Self-Determination and Education Act agreements from the minimum wage requirement. The minimum wage was increased to $10.10 per hour as of January 1, 2015, and beginning January 1, 2016, is to increase according to the Consumer Price Index. There is an alternative provision for those persons whose salaries take tips into account.

IHS Issues Final Policy on Conferring with Urban Indian Organizations. On September 29, 2014, the Indian Health Service issued a final notice on its Policy on Conferring with Urban Indian Organizations (Policy). The Policy provides for conferring on critical events at the Headquarters, Area, and Service Unit levels. The Policy states that the Urban Indian Organizations do not meet the "inter-governmental exemption" of the Federal Advisory Committee Act (FACA) and thus "any conferring activities that qualify as an advisory committee under the FACA that is convened for the purpose of developing consensus recommendations will be required to comply with the procedures set out in FACA." (See our General Memorandum 14-077 of October 6, 2014.)

FEMA Releases Final Tribal Consultation Policy. On August 26, 2014, the Federal Emergency Management Agency (FEMA) issued the final version of its tribal consultation policy. The Policy, at the request of tribes, clarified the titles, roles, responsibilities, and relationships of the different FEMA officials involved in the consultation process and the process by which tribes can initiate consultation or resolve disputes. FEMA clarified that tribal consultation is to occur where there is a significant impact on tribe(s), regardless of the impact on other stakeholders. (See our General Memorandum 14-068 of August 29, 2014.)

Interior Department Reaffirms Federal Trust Relationship with Indian Tribes. On August 20, 2014, Interior Secretary Jewell issued Secretarial Order No. 3335 which reaffirms the Interior Department's federal trust responsibility to federally-recognized Indian tribes and individual Indian beneficiaries. Secretary Jewell issued the Order in response to recommendations made by the Secretarial Commission on Indian Trust Administration and Reform. The Order recites the underpinnings of the trust relationship and its manifestation through acts of Congress, Presidential actions, court decisions, and Departmental policy. It also recognizes the Department's shortcoming with respect to the mismanagement of tribal and individual Indian trust assets and sets forth "guiding principles" which the Secretary has ordered the entire Department to honor. (See our General Memorandum 14-064 of August 22, 2014.)

EPA Policy on Environmental Justice for Working with Native Peoples. On July 24, 2014, the Environmental Protection Agency (EPA) released its Policy on Environmental Justice for Working with Federally Recognized Tribes and Indigenous Peoples (Policy). The Policy "is designed to better clarify and integrate environmental justice principles in a consistent matter in the Agency's work with federally recognized tribes and indigenous peoples." The Policy includes seventeen principles, which are set out under four headings: EPA Direct Implementation of Programs, Policies, and Activities; Tribal Environmental Programs; EPA's Engagement with Indigenous Peoples; and Intergovernmental Coordination and Collaboration. (See our General Memorandum 14-060 of August 8, 2014.)

Council for Native American Farming and Ranching Re-established. On March 31, 2014, the Department of Agriculture (USDA) published a notice that it was re-establishing the Council for Native American Farming and Ranching and soliciting nominations for membership on the Council. The Council is to advise the Secretary of Agriculture on issues related to the participation of Native American farmers and ranchers in USDA farm loan programs. (See our General Memorandum 14-028 of April 11, 2014.)

CMS Final 2015 Letter to Issuers in Federally Facilitated Marketplaces and Rule on Minimum Certification Standards for QHPs. On March 14, 2014, the Centers for Medicare & Medicaid Service (CMS) issued its final 2015 Letter to Health Insurance Issuers addressing requirements for certification and recertification of Qualified Health Plans (QHPs) in Federally-facilitated marketplaces or Federally-facilitated small business Health Options Programs. The Letter requires QHPs to contract with all Indian health providers in the QHP's service area. On May 27, 2014, CMS issued a Final Rule that includes minimum certification standards and responsibilities of QHP issuers.

IRS Employer Mandate and Reporting Rules. On February 12, 2014, and March 10, 2014, the Internal Revenue Service (IRS) published Final Rules for the Affordable Care Act's Employer Mandate and reporting requirements.

The Employer Mandate requires that "applicable large employers", which are employers with 50 or more full-time employees, offer a certain level of insurance coverage to full-time employees and their dependents beginning in 2015. The Final Rule of February 12 announced two important delays in implementation. Employers with 50-99 employees that meet eligibility requirements may delay implementation of the Employer Mandate until 2016, and employers with 100 or more employees will not be assessed penalties in 2015 if they offer coverage to at least 70 percent of full-time employees.

The IRS's Final Rule of March 10 on the Affordable Care Act's reporting requirements provides for simplified reporting for employers that meet coverage qualifications above and beyond those required to avoid Employer Mandate penalties. (See our General Memorandum 14-025 of March 21, 2014.)

Patient Direct Access to Lab Test Results. On February 6, 2014, the Department of Health and Human Services issued a Final Rule amending the Clinical Laboratory Improvement Amendments of 1988 (CLIA) regulations to give a patient (or their representative) direct access to the patient's laboratory test reports. The Final Rule also eliminates the CLIA-related exception under the Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Together, these changes will require laboratories to provide patients access to their test reports, which will give patients greater ability to access their health information. (See our General Memorandum 14-016 of
February 21, 2014.)

2013

OMB Final Rule Superseding Multiple OMB Circulars. On December 26, 2013, the Office of Management and Budget (OMB) published a Final Rule for Uniform Administrative Requirements, Cost Principles, and Audit Requirements. The Final Rule supersedes and streamlines requirements from a number of OMB Circulars and Guidance directly affecting Indian tribes and tribal organizations. (See our General Memorandum 14-004 of
January 13, 2014.)

BIA Final Rule on Land-Into-Trust Appeals. On November 13, 2013, the Bureau of Indian Affairs issued the Final Rule amending its land-into-trust regulations at 25 C.F.R. Part 151 in response to the Supreme Court's decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199 (2012) (the "Patchak" decision). The Final Rule provides that the Secretary shall complete the trust acquisition immediately after the decision to take land in trust is final for the Department, thus eliminating the previous 30-day waiting period. (See our General Memorandum 13-104 of November 22, 2013.)

Indian Law and Order Commission Releases Public Safety Report. On November 12, 2013, the Indian Law and Order Commission released its assessment of American Indian/Alaska Native public safety and criminal justice accompanied by forty recommendations. The report is entitled A Roadmap for Making Native America Safer. The Tribal Law and Order Act of 2010 (PL 111-211) created the Commission and directed it to undertake a comprehensive study of the criminal justice system relating to Indian Country and to develop recommendations. Recommendations include federal, state, and tribal reforms, some of which would require new federal laws. Among the recommendations are the provision of a tribal option to exit PL 83-280 state criminal jurisdiction; reforming the juvenile justice system including requiring tribal consent to federal prosecutions of juveniles and whether to charge a younger Native offender as an adult; recognizing and expanding Indian Country in Alaska to support tribal concurrent jurisdiction; and defendants' rights reform including establishing a U.S. Court of Indian Appeals.

Executive Order on Preparing for Climate Change. On November 1, 2013, the President issued Executive Order 13653, Preparing the United States for the Impacts of Climate Change, which establishes an interagency Council on Climate Change Preparedness and Resilience (Council). The Council is comprised of senior officials of 15 departments of the federal government and fifteen other federal agencies. The mandate of the Council is to "modernize" federal programs so that they support efforts by states, local communities, and tribes to make investments in resilience to climate change. (See our General Memorandum 13-103 of November 8, 2013.)

Food Distribution Program on Indian Reservations Final Rule. On August 27, 2013, the Department of Agriculture published a Final Rule regarding the Food Distribution Program on Indian Reservations (FDPIR). The Final Rule is designed to simplify the administration of the FDPIR and more closely align it with the Supplemental Nutrition Assistance Program (SNAP or Food Stamp Program). Notable among the changes was the elimination of household resources from consideration when determining FDPIR eligibility – this does not affect the requirement to meet current maximum FDPIR income limits. (See our General Memorandum 13-076 of August 29, 2013.)

CMS Standards for Navigator and Certified Application Counsellor Programs. On July 17, 2013, the Centers for Medicare & Medicaid Services (CMS), published a Final Rule adopting standards for Navigators and Certified Application counselors for Federally-Facilitated Exchanges, including State Partnership Exchanges, and requiring that all Exchanges operate a certified application counselor program. In the preamble to the Final Rule, CMS noted that Indian health care providers who choose to participate in the navigator or certified application counselor programs are subject to non-discrimination requirements, including but not limited to Title VI of the Civil Rights Act of 1964.

Executive Order on White House Council on Native American Affairs. On June 26, 2013, President Obama signed Executive Order 13647 establishing a White House Council on Native American Affairs (Council). The membership of the Council consists of the heads of 30 executive agencies, departments, and offices and allows the Secretary of Interior, who is the Chair of the Council, to designate additional executive agency members. The Council is charged, among other things, with coordinating a "more effective and efficient" process for tribal consultation and assisting the White House Office of Public Engagement and Intergovernmental Affairs in organizing the annual White House Tribal Nations Conference. (See our General Memorandum 13-062 of July 3, 2013.)

CMS Exemption for Individuals Eligible for IHS Coverage from Tax Penalty. On June 26, 2013, the Centers for Medicare & Medicaid Services (CMS) issued a Final Rule setting forth standards and procedures that apply in making eligibility determinations for exemption from the Affordable Care Act's tax penalty for failure to obtain health insurance. The Final Rule includes an important provision that ensures that non-member Indians eligible for Indian Health Service coverage, in addition to enrolled members of federally recognized tribes, will not be subject to a tax penalty for the failure to purchase insurance on the private market. The Rule can be found in the July 15, 2013 FEDERAL REGISTER.

Department of the Interior Final Rule Implementing Buy Indian Act. On June 7, 2013, the Department of the Interior (DOI) published a Final Rule implementing the Buy Indian Act and supplements the Federal Acquisition Regulation (FAR) and the Department of the Interior Acquisition Regulation (DIAR). The Final Rule "formalizes an administrative procedure for all acquisition activities/locations to ensure that [Indian Affairs] will apply the procedures uniformly for eligible Indian Economic Enterprises that submit offers under solicitations set aside under the Act." The Final Rule applies to all offices and bureaus that fall within the authority of the Assistant Secretary for Indian Affairs. (See our General Memorandum 13-048 of June 14, 2013.)

Presidential Memorandum on the Electric Transmission Grid. On June 7, 2013, President Obama issued a memorandum for heads of executive departments and agencies titled "Transforming Our Nation's Electric Grid through Improved Siting, Permitting, and Review." The memorandum directed federal agencies to take a number of steps to improve siting, permitting, and review of transmission projects. Recognizing that a project may cross many governmental jurisdictions, the memorandum stressed the need for "robust collaboration" among federal, state, local, and tribal governments. (See our General Memorandum 13-051 of
June 21, 2013.)

Commerce Department Tribal Consultation Policy. On June 4, 2013 the Department of Commerce published a Department-wide tribal consultation policy. Among the Commerce Department agencies which affect tribes and tribal communities are the: National Oceanic and Atmospheric Administration; Minority Business Development Agency; Economic Development Administration; Economics and Statistics Administration, including the Census Bureau; and National Telecommunications and Information Administration. (See our General Memorandum 13-059 of
June 28, 2013.)

Interagency Action Plan for Protection of Indian Sacred Sites. On March 5, 2013, five federal agencies jointly released the Action Plan to Implement the Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the Protection of Indian Sacred Sites (Action Plan). The agencies that are parties to the Action Plan are the Departments of Defense, Interior, Agriculture, and Energy, and the Advisory Council for Historic Preservation. The Action Plan commits to establishing two working groups which are to take action in the following areas: Evaluation of Existing Authorities; Training Program; Development of Guidance; Creation and Maintenance of the Website; Public Outreach Plan; Confidentiality Standards; Management Practices; Interagency Expertise and Contracting with Indian Tribes; Outreach to Non-Federal Partners; and Building Tribal Capacity. (See our General Memorandum 13-025 of March 8, 2013.)

Please let us know if we may provide additional information regarding the matters summarized in this Memorandum.

# # #

Inquiries may be directed to:
Karen Funk (kfunk@hobbsstraus.com)
Moriah O'Brien (mobrien@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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