White House Announces Department of the Interior Solicitor Nominee

White House Announces Department of the Interior Solicitor Nominee

On Monday, July 31st, the White House announced the President’s intent to nominate Idaho attorney Ryan Nelson to serve as the Solicitor of the Department of the Interior (DOI or Department). The DOI Solicitor plays a significant role in determining the Department’s legal positions on litigation and federal laws that impact the federal government’s treaty and trust obligations to Indian Country. The nomination will be referred to the Senate Committee on Energy and Natural Resources, which will likely schedule a hearing on the nomination in September.

A link to the White House press release is included here: https://www.whitehouse.gov/the-press-office/2017/07/31/president-donald-j-trump-announces-intent-nominate-personnel-key.

Senate Rejects the “Skinny Repeal” of the Affordable Care Act by a Vote of 49-51

Senate Rejects the “Skinny Repeal” of the Affordable Care Act by a Vote of 49-51

In the early hours of Friday morning on July 28th, the Senate voted against the “Skinny Repeal” measure, which was a scaled down repeal of the Affordable Care Act (ACA), by a vote of 49-51 ending attempts to repeal the ACA for now. Three Republican Senators voted against the bill, which included: Senator Susan Collins (ME), Senator John McCain (AZ), and Senator Lisa Murkowski (AK). While Senators Collins and Murkowski were expected to vote against the bill, Senator McCain’s vote against the bill was not entirely expected. McCain made a dramatic return to the Senate to vote for the motion to proceed to debate on the bill earlier in that week. As the Senate held the vote open for more than an hour, both Vice President Pence and President Trump tried to convince Senator McCain to change his vote to yes, but he refused to vote for the measure. In response to questions about why he voted against the bill, Senator McCain simply said, “I thought it was the right vote, I do my job as a Senator.”

After failing to pass different versions of an ACA repeal including the BCRA (repeal and replace) and the ORRA (repeal and delay), Senate Republican Leadership had crafted what they called a “Skinny Repeal” that would have repealed the individual mandate, repealed the employer mandate for 8 years, provided additional flexibility to state’s on implementing ACA regulations, defund Planned Parenthood and provide that funding to community health centers, repeal the medical device tax for 3 years, increase contribution limits to Health Savings Accounts, and eliminate the Center for Disease Control’s Prevention and Public Health Fund. The “Skinny Repeal” was an attempt to find a bill that would be able to pass the Senate and enable the Senate and House to set up a Conference Committee to write a new ACA repeal bill. Many Republican Senators only supported the bill after assurances from the Speaker of the House that they would engage in a Conference Committee and not just take up the Senate bill in the House.

Interior Department Releases Interim Bears Ears Monument Report

Interior Department Releases Interim Bears Ears Monument Report

On Friday, June 10th, Interior Secretary Ryan Zinke submitted the Department’s Interim Report summarizing its review and recommendations about President Obama’s designation of the Bears Ears National Monument (The 5-page Report can be found here courtesy of Turtletalk).

The Interim Report on Bears Ears recommends: (1) that the President diminish the size of the Bears Ears National Monument “through the use of appropriate authority, including lawful exercise of the President’s authority granted by the [Antiquities] Act”; (2) that the President request congressional authority to enable tribal co-management of designated cultural areas; (3) that Congress designate areas within the existing Bears Ears National Monument as national recreational or conservation areas; and (4) that Congress clarify the intent of the management practices of wilderness or wilderness study areas within a national monument.

Senator Tom Udall (D-NM) and the Native American Rights Fund issued separate statements opposing the Report’s findings and recommendations, and challenged the legality of the recommendation for the President to unilaterally shrink the boundaries of the Monument.

Interior will continue to accept comments on the Bears Ears review through July 10, 2017—the deadline for commenting on the other national monuments under review. You may submit written comments online at http://www.regulations.gov by entering “DOI-2017-0002” in the Search bar and clicking “Search,” or by mail to Monument Review, MS-1530, U.S. Department of the Interior, 1849 C Street NW., Washington, DC 20240.

June 13th, 2017 – Senate Committee on Indian Affairs Legislative Hearing on Indian Healthcare and Housing Bills

June 13th, 2017 – Senate Committee on Indian Affairs Legislative Hearing on Indian Healthcare and Housing Bills

The Senate Committee on Indian Affairs has scheduled a legislative hearing to receive testimony on the following bills.

  • S. 1250, A bill to amend the Indian Health Care Improvement Act to improve the recruitment and retention of employees in the Indian Health Service, restore accountability in the Indian Health Service, improve health services, and for other purposes.
  • S. 1275, A bill to improve the housing conditions and promote useful land uses within tribal communities, and for other purposes.
  • S. ____, HUD/VA Veterans Affairs Supporting Housing, and for other purposes.

The hearing will take place on Tuesday, June 13th, at 2:30 p.m. EST in Room 628 of the Dirksen Senate Office Building in Washington, D.C.

Witnesses for live testimony are by invitation only, and a list will be posted on the Committee’s website once confirmed. The record will be open for two weeks following the hearing for written comments. A webcast of this hearing will be available on the scheduled hearing date on the Committee website.

For more information about the hearing or the Senate Committee on Indian Affairs, please visit: http://www.indian.senate.gov/.

May 24th, 2017 – House Appropriations Subcommittee on Interior, Environment, and Related Agencies Hearings on IHS and Tribal Programs

May 24th, 2017 – House Appropriations Subcommittee on Interior, Environment, and Related Agencies Hearings on IHS and Tribal Programs

The House Appropriations Subcommittee on Interior, Environment, and Related Agencies (Subcommittee) has scheduled two separate hearings on critical tribal programs. The first hearing will focus on the Indian Health Service (IHS) budget and will take place on Wednesday, May 24th at 1:00 p.m. EST in Room 2007 of the Rayburn House Office Building in Washington, D.C. Rear Admiral Chris Buchanan, Acting Director of the IHS, is scheduled to provide testimony.

The second will be an oversight hearing, which will focus on High Risk American Indian and Alaska Native Programs (Education, Healthcare, Energy) and will take place on Wednesday, May 24th at 2:00 p.m. EST in Room 2007 of the Rayburn House Office Building. Witnesses for this hearing will include the following:

  • Melissa Emrey-Arras – Director, Education, Workforce and Income Security Team, U.S. Government Accountability Office (GAO);
  • Kathleen King – Director, Health Care Team, U.S. Government Accountability Office (GAO); and
  • Frank Rusco – Director, Natural Resources and Environment Team, U.S. Government Accountability Office (GAO).

A webcast of this hearing will be available on the scheduled hearing date on the Subcommittee website.

For more information about the hearing or the House Appropriations Subcommittee on Interior, Environment, and Related Agencies, please visit: http://appropriations.house.gov/subcommittees/subcommittee/?IssueID=34778.

May 17th, 2017 – Senate Committee on Indian Affairs Oversight Hearing on GAO Report on Tribal Programs

May 17th, 2017 – Senate Committee on Indian Affairs Oversight Hearing on GAO Report on Tribal Programs

The Senate Committee on Indian Affairs has scheduled an oversight hearing titled, “High Risk, No Reward: GAO’s High Risk list for Indian Programs.” The 2017 GAO study is titled, “Improving Federal Management of Programs that Serve Tribes and Their Members,” and a copy can be found in the following link: http://www.gao.gov/highrisk/improving_federal_management_serve_tribes/why_did_study

The hearing will take place on Wednesday, May 17th, at 2:30 p.m. EST in Room 628 of the Dirksen Senate Office Building in Washington, D.C.

Witnesses for live testimony are by invitation only, and a list will be posted on the Committee’s website once confirmed. The record will be open for two weeks following the hearing for written comments. A webcast of this hearing will be available on the scheduled hearing date on the Committee website.

For more information about the hearing or the Senate Committee on Indian Affairs, please visit: http://www.indian.senate.gov/.

May 10th, 2017 – Senate Committee on Indian Affairs Legislative Hearing on S. 772 and S. 825

May 10th, 2017 – Senate Committee on Indian Affairs Legislative Hearing on S. 772 and S. 825

The Senate Committee on Indian Affairs has scheduled a legislative hearing to receive testimony on the following bills referred to the Committee.

  • S. 772, A bill to amend the PROTECT Act to make Indian tribes eligible for AMBER Alert grants.
  • S. 825, A bill to provide for the conveyance of certain property to the Southeast Alaska Regional Health Consortium located in Sitka, Alaska, and for other purposes.

The hearing will take place on Wednesday, May 10th, at 2:30 p.m. EST in Room 628 of the Dirksen Senate Office Building in Washington, D.C.

Witnesses for live testimony are by invitation only, and a list will be posted on the Committee’s website once confirmed. The record will be open for two weeks following the hearing for written comments. A webcast of this hearing will be available on the scheduled hearing date on the Committee website.

For more information about the hearing or the Senate Committee on Indian Affairs, please visit: http://www.indian.senate.gov/.

Supreme Court Issues Decision in Lewis v. Clark

Supreme Court Issues Decision in Lewis v. Clark

Today, the Supreme Court issued an 8-0 opinion in Lewis v. Clark (docket 15-1500), holding that in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated.

The Court found a clear distinction between a defendant in an official capacity action (where the relief sought is only nominally against the official and in fact is against the official’s office and the sovereign itself), who may assert sovereign immunity, and a defendant in an individual capacity, who can only assert the personal immunity defense of official immunity.

The opinion was authored by Justice Sotomayor and was joined by Justices Roberts, Kennedy, Breyer, Alito, and Kagen. Justices Thomas and Ginsburg filed concurring opinions. Justice Gorsuch did not take part in the consideration or decision of the case.

Background

The case stems from a 2011 car accident between a limousine owned by the Mohegan Tribal Gaming Authority and a man named Brian Lewis. Lewis claimed he was injured as a result of limo driver William Clarke’s negligent and careless driving. Clark, a Mohegan employee, moved to dismiss the complaint arguing that because he was driving the limousine as an employee of the Mohegan Tribal Gaming Authority, the trial court lacked subject matter jurisdiction because he was entitled to tribal sovereign immunity.

The trial court denied the motion, finding that the doctrine of tribal sovereign immunity did not apply because Lewis sought damages from Clarke personally, not from the Mohegan Tribal Gaming Authority. The Connecticut Supreme Court reversed and held that tribal sovereign immunity extended to Clarke as a member of the tribe acting within the scope of his employment as a limousine driver with the Mohegan Tribal Gaming Authority.

FY17 Appropriations Update

FY17 APPROPRIATIONS UPDATE

Funding for the government expires April 28th, leaving just one week left to pass a bill in both the House and Senate and to have the President sign it. For the last two weeks, Congress has been on recess, but the Appropriations Committee Members and staff have been hard at work to finalize an Omnibus Appropriations Bill. Although both the Senate and House Appropriations Committee Members seem intent on completing negotiations for an Omnibus Appropriations Bill to finish out this fiscal year, there are at least a few issues that are proving to be hurdles to completing the bill. These include the border wall, sanctuary cities, additional defense spending, and coal miner’s benefits.

At this point, it is unclear if a final deal will be reached by next Friday. However, both Congressional Republicans and Democrats do not appear to have a significant interest in actually shutting down the government (unlike the previous shutdown). What is less clear is if the Trump Administration is willing to insist on its priorities to the point of forcing a government shutdown.

Given the continued disagreements, it is also very possible that a short-term Continuing Resolution (CR) funding the government for another week will be passed to provide more time to negotiate these issues. It is also possible that what is ultimately passed is a combination CR and Omnibus (CROmnibus) where certain appropriations bills will be a CR due to unresolvable disagreements while other appropriations bills will have new funding levels set where agreement can be reached.

Trump Administration Lifts Hiring Freeze; Directs Agencies to Submit Workforce Restructuring Plans

Trump Administration Lifts Hiring Freeze; Directs Agencies to Submit Workforce Restructuring Plans

The White House has announced that the federal hiring freeze put into place at the beginning of the Trump administration will be lifted. The freeze temporarily halted all non-military federal hiring, in an attempt to fulfill the Trump campaign promise to “drain the swamp” and reduce the size of government.

The lifting of the freeze does not, however, mean that agencies will be given the latitude to fill any and all positions. The across the board freeze is instead being replaced by what the Administration is calling “a smarter plan, a more strategic plan, a more surgical plan.” The Office of Management and Budget has issued guidance ordering federal departments and agencies to “begin taking immediate actions” to reduce the size of their workforces over the long-term. Agency heads must develop a plan to “maximize employee performance” by June 30 and submit a final version of that plan to the White House budget office by September.

The ability of agencies to fill positions and maintain program staff will also be largely dependent on the budgets passed by Congress for the remainder of FY2017 and for FY2018.