Update From Senate Committee on Indian Affairs Hear Priorities for the 2015 Congressional Term from Native American Leaders

By: Rachel Giubilato | Law Clerk
Theodore J. Griswold | Partner | ted.griswold@procopio.com

On January 28, 2015, the Senate Committee on Indian Affairs (“Committee”) heard testimony from prominent members of the Native American community in an effort to prioritize the Native American agenda for the 114^th Congress. Witnesses included: Honorable Aaron Payment and Gary Davis from the National Congress of American Indians, Melvin Monette from the National Indian Education Association, Stacy Bohlen from the National Indian Health Board, and Vance Homegun from the Center for Native American Youth. Each witness spoke to their organization’s specific expectations of the 114^th Congress; however, a common theme prevailed—the need for protection of tribal self-determination through robust local consultation procedures. To that point, Vance Homegun delivered an emotional request that the Committee include Native youth in their consultation procedures for the purpose of promoting inter-generational tribal ties. Ms. Bohlen added that self-determination could be better facilitated by Congress through advanced appropriations for providing Indian Health program, allowing predictable and more efficient expenditures and better financial planning.

Senator John Barrasso from Wyoming was elected Chairman of the Committee and stated his commitment to push Native American legislation he sponsored for the term. Senator Barrasso is particularly interested in Senate Bill 209, named the Indian Tribal Energy Development and Self-Determination Act Amendments of 2015, which proposes to allow tribes more autonomy in energy source development. The Bill was introduced on Jan. 21, 2015 and has been referred to the Committee for further review. [The text of the Bill may be found at http://www.barrasso.senate.gov/public/index.cfm/sponsored-legislation.]

Full video of the hearing is available online at http://www.indian.senate.gov/hearing/oversight-hearing-indian-country-priorities-114th-congress-january-28-2015-205-pm-est.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Tribal General Welfare Exclusion Act of 2014 provides Many New Benefits to Tribes and their Tribal Members Beyond the General Welfare Exclusion.

By: Eric D. Swenson | Senior Counsel | eric.swenson@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The Tribal General Welfare Exclusion excludes from taxable income certain general welfare payments to members of Indian Tribes. On September 26, 2014, President Obama signed into law H.R. 3043, the Tribal General Welfare Exclusion Act (the “Act”). The Act creates a new Internal Revenue Code provision, Section 139E. This law is extremely beneficial to both Tribes and their members. In addition to codifying the General Welfare Exclusion as it applies to Tribes and their members, the Act also provides for the establishment of a Tribal Advisory Committee, the training and education of IRS Revenue Agents regarding the applicability of federal tax law to Tribes and their members, and temporarily suspends all IRS audits where the taxation of certain benefits may fall within the Tribal General Welfare Exclusion.

The following provides a brief summary of Revenue Procedure 2014-35 that has more or less been superseded by the new Act, but is still useful for guidance on the application of the Act, and summarizes the Act, including the tax benefits for Tribes and their members beyond just the passage of the General Welfare Exclusion.

Revenue Procedure 2014-35. Previously, on June 4, 2014, the Internal Revenue Service (“IRS”) issued Revenue Procedure 2014-35, entitled “Application of the General Welfare Exclusion to Indian Tribal Government Programs that Provide Benefits to Tribal Members” (the “Revenue Procedure”). The Revenue Procedure was the culmination of at least a few years’ worth of IRS notices and feedback from the Native American community.

The Revenue Procedure provided safe harbors under which the IRS would conclusively presume that the “individual need requirement” of the General Welfare Exclusion is met for benefits provided under certain Indian Tribal governmental programs described in the Revenue Procedure (the “Safe Harbors”).  If such Safe Harbors were met for the certain Indian Tribal governmental program, the IRS would not assert that such benefits provided under such programs are taxable gross income to a Tribal member who benefits from such program.

For a complete discussion of Revenue Procedure 2014-35, please see our Alert, dated July 2, 2014, entitled “The Internal Revenue Service issues Important Final Guidance on the Application of the General Welfare Exclusion for Certain Tribal Government Programs.”

As noted above, although the Revenue Procedure is still helpful for guidance on the application of the Act, such Revenue Procedure was effectively superseded by the passage of the Act.

Tribal General Welfare Exclusion Act. The Act amends the Internal Revenue Code to exclude from gross income, for income tax purposes, the value of an Indian general welfare benefit.  “Indian general welfare benefit” is generally defined as any payment made or services provided to or on behalf of a member of an Indian Tribe under an Indian Tribal government program if:

1. such program is administered under specified guidelines and does not discriminate in favor of members of the governing body of the Indian Tribe; and
2. the program benefits are available to any Tribal member, are for the promotion of general welfare, are not lavish or extravagant, and are not compensation for services.

Additionally, the Act specifically directs the Secretary of the Treasury to:

1. establish a Tribal Advisory Committee to advise the Secretary on the taxation of Indians (the Act, Section 3);
2. establish and require training and education for Internal Revenue Service (IRS) field agents on federal Indian law and the implementation of this Act (the Act, Section 3(b)(2)); and
3. suspend audits and examinations of Indian Tribal governments and members of Indian Tribes and waive any interest or tax penalties related to the exclusion from gross income of Indian general welfare benefits (the Act, Section 4).

_________________________

For an excellent discussion of the Act, including what the Treasury hope to achieve with the new Tribal Advisory Committee, see the Remarks by Dr. Elaine Buckberg, Treasury Point of Contact for Tribal Consultation and Deputy Assistant Secretary for Policy Coordination in the Office of Economic Policy, for the National Congress of American Indians (NCAI) Annual Meeting Session on Tribal Tax Parity: Next Steps After a New Federal Law, dated October 28, 2014.

The text of the entire Act can be found here.

If you have any questions regarding the Act or its application, feel free to call Eric D. Swenson at 619.515.3235.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

California’s New CEQA Protections for Tribal Cultural Resources and the Requirement to Consult with Native American Tribes

By: Kevin M. Davis | Attorney | kevin.davis@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

On September 25, 2014, Governor Brown signed Assembly Bill No. 52 (AB 52), which seeks to provide greater protection for many Native American sacred sites in California. The bill is a step in the right direction, but it is only one step with quite a trail ahead. At the end of the trail, we would expect to see adequately protected Native American sacred sites in this State through meaningful consultations between lead agencies, project proponents and any of the affected Native American Tribes or Tribal Governments (“Tribes”). The important first steps that AB 52 has taken are discussed below along with the next steps that the State will need to take in order to continue down this trail.

AB 52 amends the California Environmental Quality Act (CEQA) to: (1) define an adverse change to a “Tribal Cultural Resource” as a “significant impact;” and, (2) require consultation with affected “California Native American Tribes” prior to the release of a negative declaration, mitigated negative declaration, or environmental impact report for a project. This is an important first step toward protection of Tribal Cultural Resources because CEQA now requires that Native American Tribes have a voice in protecting Tribal Cultural Resources. However, this first step occurs late in the process because these documents are released well after a project is planned and sited. The better process (and next step?) to protect Tribal Cultural Resources would be to involve the Tribes earlier in the process – when the Tribes would have an opportunity to consult on meaningful project decisions in the planning and siting phases.

The “Tribal Cultural Resources” identified by CEQA include “sites, features, places, cultural landscapes, sacred places, and objects with a cultural value to a California Native American Tribe” that are included or eligible for inclusion in the California Register of Historical Resources, or in a local register of historical resources. “Tribal Cultural Resources” also include cultural landscapes, historical resources and non-unique archaeological resources that meet these criteria. A lead agency has discretion to designate a resource as a “Tribal Cultural Resource.” By limiting the definition of a “Tribal Cultural Resource,” the statute limits protections to only registered resources or resources designated under the lead agency’s discretion. Further down the trail the State should take the next step towards protecting these important resources by broadening the statute’s definition or providing the affected Tribes some discretion over what constitutes such a resource.

When a Tribal Cultural Resource exists in a project area, a lead agency must consult with Native American Tribes that are: (1) located in California; (2) traditionally and culturally affiliated with the proposed project’s geographic area; and, (3) registered on the National American Heritage Commission’s contact list. A lead agency therefore may not be required to consult with all Tribes that could be affected by a proposed project (if a Tribe does not meet these criteria). Furthermore, in order to trigger the consultation under AB 52, the onus is on the Tribe to: (1) request in writing that the lead agency inform the Tribe of proposed projects in the geographic area; and, (2) request a consultation in writing within 30 days of such notification of a project. While the Native American Heritage Commission is tasked with assisting the lead agencies to identify Tribes affiliated with the project area, the burden is ultimately placed on the Tribes to pursue the consultation. Logically, the next step would be to remove these significant procedural burdens placed on the Tribes so they do not lose the opportunity to consult with the lead agency.

The consultation includes an opportunity for a qualified Tribe to propose mitigation measures that avoid or lessen potentially significant impacts to the “Tribal Cultural Resource.” For many Tribes, however this consultation may be a dead end or short trail. Any mitigation measures arising from the consultation are only recommended for inclusion in the environmental document and the adopted mitigation monitoring and reporting program. If included by the lead agency as a requirement of project approval, only then would the measures become fully enforceable under CEQA.

The mitigation measures suggested to avoid or minimize significant adverse impacts to “Tribal Cultural Resources” include: (1) avoidance and preservation of the resource; (2) treating the resource with culturally appropriate dignity; (3) permanent conservation easements; and (4) protecting the resource. However, no examples were provided, so the commitment to protect these resources is vague at best. This trail needs better markers. Further, the consultation would occur late in the CEQA review process so it is difficult to determine how the measures may be implemented when the location and scope of the project has already been established. As a next step, this statute needs to provide projects earlier direction and clarification in order to be effective. The lead agency should consult with Tribal representatives at the planning and siting stages to develop appropriate mitigation measures. Only then will we be able to walk down this trail with a clear direction.

Finally, AB 52 provides that a Tribe may request that the information provided through the consultation process be maintained in a confidential appendix to the environmental document. This would hopefully protect confidential Tribal information from public review, but this protection is subject to the lead agency’s diligence in preserving the confidentiality of such information. This open-ended protection from a lead agency may not be sufficient for Tribes to risk disclosing confidential information about their most sacred sites, which undermines the effectiveness of these CEQA amendments.

By enacting AB 52, California has taken a first step towards protecting many Native American sacred sites in the State. However, the trail ahead must be more clearly marked and there are many steps left to be taken. A copy of AB 52 is available here. For more information, please contact Kevin Davis at (619) 515-3293 or kevin.davis@procopio.com. Kevin Davis is a member of Procopio’s Native American practice group, who advises public agencies, Native American Tribes, and private entities on environmental and land use matters.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Carcieri Clarification: BIA Allowed to Limit Consideration to Whether Tribal Government is “Under Federal Jurisdiction” in 1934 for Fee to Trust Decisions

By: Rachel Giubilato | Law Clerk
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The DC Circuit Court in The Confederated Tribes of the Grand Ronde Community of Oregon, et al., v. Sally Jewell, et. al., (Civil Action No. 13-849 (BJR) December 12, 2014) undertook clarifying the ambiguity of Native fee-to-trust determinations left in the wake of Carcieri. In Carcieri v. Salazar, 555 U.S. 379 (2009), the Supreme Court held the definition of “Indian” under the Indian Reorganization Act of 1934 (IRA) applied to a tribal government “under federal jurisdiction” as of the date of enactment, 1934. However, the Carcieri Court remained silent as to whether a tribal government also had to be federally “recognized” as of 1934 to qualify.

Two schools of thought subsequently developed: the first believing a tribal government must be “under federal jurisdiction” and “recognized” as of 1934 for qualification under the IRA, and the second believing “under federal jurisdiction” and “recognized” to be separate concepts with only “under federal jurisdiction” subject to the 1934 cut-off. Since Carcieri, the Department of the Interior (DOI) has adopted the latter interpretation, continuing to accept land into trust for tribes who were deemed “recognized” post-1934.

The dispute in The Confederated Tribes of Grand Ronde arose from the DOI’s acceptance into trust of 152 acres of fee land owned by the Cowlitz Indian Tribe. The Confederated Tribes of Grand Ronde (Grand Ronde), together with Clark County, disputed the DOI determination, arguing that Cowlitz does not qualify under the IRA definition of “Indian” because they did not attain federal recognition until 2002 (consistent with the first school of thought explained above). Grand Ronde and Clark County sought reversal of the DOI determination on the basis that DOI made an unreasonable interpretation that only the “under federal jurisdiction” requirement of IRA was required for fee-to-trust decision.

The DOI countered that its interpretation was reasonable, and pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), judicial deference must be provided to an agency’s determination when a statute is ambiguous and the agency has provided a reasonable interpretation. The court agreed and upheld the DOI determination as dispositive of Cowlitz’s status under the IRA.

Keeping the concepts of “under federal jurisdiction” and “recognized” separate is pertinent for tribal governments seeking federal recognition as the scope of tribal governments that were considered “under federal jurisdiction” is much broader than the tribal governments “recognized” through the federal government in 1934.

For now, tribal governments and those relying on this determination for a fee-to-trust decision can continue to rely on the DOI interpretation that only “under federal jurisdiction” is required while they await the legislative clarification for the Carcieri case.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Interior Proposes to Ease Eligibility and Increase Funding for Tribal Housing Improvement Program (HIP)

By: Rachel Giubilato | Law Clerk
Theodore J. Griswold | Partner | ted.griswold@procopio.com

On January 2, 2015 the Department of the Interior (DOI) issued a Proposed Rule to amend the Housing Improvement Program (HIP). HIP provides federal funding for Native families who meet federal income guidelines to repair, replace, or renovate housing. The DOI expects the proposed changes to more efficiently prioritize HIP applicants and provide more adequate funding for Native applicants seeking HIP funding.

The Proposed Rule makes six significant changes:

1. Categories of Assistance and Funding Limits: The Proposed Rule increases the limit for Category A funding (repair of existing homes) from $2,500 to $7,500 and increases the limit for Category B funding (renovation of existing homes) from $35,000 to $60,000.
2. Ranking Factors. Ranking Factors determine priority for HIP applicants based on annual household income, age, disability, and family size. The Proposed Rule adds new ranking factors for homelessness, overcrowding, and dilapidated housing. Additionally, the Proposed Rule changes the eligibility criteria under annual household income from 125% to 150% of the Federal Poverty Income Guidelines.
3. Payback Agreements. The Proposed Rule lengthens the Category B (renovation of existing homes) payback period from 5 years to 10 years. All other payback periods are kept status quo.
4. Four-Year Application Period. The Proposed Rule changes the application period from 1 year to 4 years to prevent Native families from having to apply annually for HIP funds.
5. [Relaxed] Land Ownership Requirements. The Proposed Rule allows proof of a homesite lease or proof the HIP applicant can obtain the land (even by lease) in lieu of the current requirement to provide proof of land ownership prior to the grant award.
6. Square Footage Limits. The Proposed Rule increases square footage limits between 50-100 square feet to provide ADA compliant housing.

The change in HIP regulations could empower more Native families to ensure their are more opportunities for their house needs to be met.  The increase in funding coupled with the release of the land ownership requirements will add a needed degree of flexibility allowing more Native families to qualify for the program. Comments on the proposed rule are open until March 6, 2015. The proposed rule and directions for comments are found here.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.