By Karrie Witchman
All eyes in Indian Country seem to be on the new administration, with most leery of a relapse after progress toward tribal self-determination under President Obama. The GOP controls the White House, the Senate and the House. The Senate enacted new rules to break a filibuster and make a Supreme Court appointment.
Questions loom regarding Indian Country funding, the survival of the Indian Health Care Improvement Act and the Affordable Care Act, which have provisions that benefit tribal health centers. There are also questions about fee-to-trust acquisitions, government-to-government consultation, economic development, treaty rights and critical judicial appointments impacting Indian Country.
President Trump’s proposed budget would cut $21 billion in funding for federal agencies where Indian Country spending is significant. That will most assuredly translate to a loss of funding relied on by tribes for essential government services.
The Department of the Interior (DOI) Office of the Secretariat and Regulatory Affairs issued a letter to all DOI Chiefs of Staff about reviewing correspondence and meetings agendas with tribal leaders related to tribal issues. Many grant funding opportunities for Indian education have already been discontinued. The assistant Secretary of Indian Affairs has lost decision making authority over off reservation fee-to-trust acquisitions, which now is the purview of the highest levels—likely adding more time and scrutiny to such decisions.
Obama administration executive decisions to protect sacred sites and the environment are being trumped (pun intended) in favor of corporate interests.
With Justice Gorsuch confirmed, 126 federal judicial appointments remain, many of whom will have purview over critical cases in Indian Country. In addition, over 500 presidential appointments remain unfilled with many having responsibilities to or for Indian Country.
Of great significance is the potential repeal and replacement of the Affordable Care Act. Many tribes rely upon the ACA and Indian Health Care Improvement Act (IHCIA) to realize third-party billing revenues, which have been instrumental in funding tribal health center improvements and expansion, ancillary health care programs and services, and subsidized insurance premiums.
Although the Trump Administration’s first effort to replace the ACA failed to garner Republican support, campaign promises regarding health care have not been forgotten. A proposed ACA replacement is likely to resurface. Tribes and tribal members should beware health care provisions that threaten the IHCIA, limit and rollback Medicaid expansion and propose block grant funding that would force tribes to compete with states for funding.
While health care proposals from the current administration have kept the IHCIA intact, tribes should continue to monitor developments in this area, especially given the effect that Medicaid rollback could have on tribal members’ access to health care and on the funding available for tribal health care facilities.
On a more positive note, tribal energy development has emerged as a key priority issue of the new Congress. Sen. John Hoeven, (R-ND), chairman of the Senate Committee on Indian Affairs, has introduced SB 245, which would amend the 2005 Indian Tribal Energy Development and Self-Determination Act. SB 245 supports tribal sovereignty, Indian self-determination and the trust relationship between tribes and the federal government.
Under SB 245, tribes would be able to assert more authority and control over tribal lands and resources and bypass Department of Interior approval requirements. Tribes would be allowed to exercise a lot more authority over their natural resources through Tribal Energy Resource Agreements (TERAs). These agreements were first authorized under the 2005 act and require secretarial approval.
SB 245 further supports tribal economic development by encouraging joint tribal-industry ventures for the production and transmission of traditional and renewable energy sources without Department of the Interior approval. The Senate Committee on Indian Affairs passed SB 245 on Feb. 8, and it needs continued monitoring.
In sum, the changes that Indian Country will experience from the new Administration and Congress remains uncertain. However, tribes and tribal representatives should remain actively engaged with Congressional and agency representatives to ensure that the federal trust responsibility to Indian Nations remains a priority. ♦