2021 WINTER LEGISLATIVE SUMMIT
MARCH 09, 2021 VIRTUAL SUMMIT
2021 Virtual Legislative Summit
Tuesday, March 9, 2021
1:00pm
Welcome & Invocation Ernest L. Stevens, Jr, Chairman – National Indian Gaming Association
1:10pm
Rep. Sharice Davids (KS-03)
1:25pm
2020 Indian Gaming Economic Impact Report James Klas, Founder & Principal – KlasRobinson Q.E.D., Inc.
1:40pm
New Members of the 117 th and Committee Assignments Aurene Martin, Partner – Spirit Rock Consulting
1:50pm
The Historic Nomination of Deb Haaland – What next? Holly Cook Macarro, Partner – Spirit Rock Consulting
2:00pm
Rep. Raul Grijalva (AZ-03)
2:15pm
Overview of New COVID-19 Bill – American Rescue Plan John Harte, Partner – Mapetsi Consulting Pete Kirkham, Founder – Red Maple Consulting
2:30pm
Rep. Betty McCollum (MN-04)
2:45 pm
Update from NIGC Commissioners
3:00pm
National Indian Gaming Association Lifetime Achievement Honoring Joe Garcia, Head Councilman – Ohkay Owingeh Dee Pigsley, Tribal Chair – Confederate Tribes of Siletz Indians Senator Ben Nighthorse Campbell LaDonna Harris, President – Americans for Indian Opportunity
FEDERAL POLICY PRIORITIES WINTER LEGISLATIVE SUMMIT 2021
Introduction: Persevering Through a Difficult Year……………...
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Political Landscape in the 117 th Congress………………………….
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Tribal Provisions in the American Rescue Plan …………..………
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Enhancing the Indian Land Into Trust Process ………….………
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Attacks on Tribal Sovereign Immunity ……….…………………….
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Infrastructure Revitalizaiton: Indian Country Needs …………….
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Introduction: Indian Country Perseveres Through a Difficult Year To our Member Tribes and Partners: This past year has tested the resolve of the entire nation - we have suffered unthinkable loss over the past year. The COVID-19 pandemic created a health and economic crisis in the United States, taking more than 500,000 American lives, infecting nearly 29 million Americans, and more than 10 million remain unemployed. Indian Country has been particularly hard hit. The virus continues to disproportionately inflict harm on the health and economies of Native communities. The CDC reports that on a per capita basis, Native Americans have the highest COVID-infection, hospitalization, and death rates of any community in the Nation. From an economic standpoint, every Indian gaming operation in the nation closed to prevent spread of the virus in our communities. Some Tribes chose to keep their doors closed where community spread remained a high risk. Those that chose to re-open did so slowly and safely, in coordination with tribal health officials, engaged in testing, temperature checks, hand sanitizing, mask wearing, deep cleaning, occupancy limits. As a result, it is estimated that Tribal Government-owned enterprises will sustain 35 percent revenue losses in 2020 alone—with losses totaling more than $30 billion before a full recovery to 2019 revenue levels in 2023. These lost government revenues have forced many Tribes to furlough government employees and cut provisions of essential education, health, housing and safety services to Reservation residents. At the onset of the pandemic in early March 2020, the National Indian Gaming Association immediately got to work to address the quickly emerging crises caused by COVID-19. Congress responded to the calls from Indian Country by enacting the CARES Act on March 27, 2020, which provided historic levels of funding for Indian tribes through the $8 billion Coronavirus Relief Fund, and other key provisions to help Tribal Governments stop the spread of the virus and maintain economic stability. The Administration’s rollout of these provisions was rocky at first, but working with champions of Indian Country, we were able to ensure Tribal access to the $350 Billion Paycheck Protection Program for small gaming operations and worked to smooth the administration of other programs designed to help Tribes address the health and economic impacts of the virus. The CARES Act passed, nearly a year ago, to provide a lifeline for Tribal Governments to endure the initial shock of the pandemic, but much more has been needed for some time. To address these ongoing and urgent needs, the National Indian Gaming Association continued work with Congress and more recently the Biden Administration to ensure these significant needs were addressed in the next COVID-relief package. Thanks to this ground work, we are excited to report that President Biden’s American Rescue Plan delivers on all fronts in historic proportions. The American Rescue Plan includes $20 Billion to Tribal Governments through the re-named Fiscal Recovery Funds (formerly Coronavirus Relief Fund), which provides more flexibility and time to spend the funds. The bill includes a wide array of other resources to help Tribes address the health and economic impacts of the pandemic. The Senate passed the bill on Saturday, March 6, and the House is set to advance the bill for President Biden’s signature this week. A summary of the Senate-passed American Rescue Plan is posted in more detail below. President Biden’s next legislative priority is to revitalize our nation’s infrastructure. The National Indian Gaming Association will work with the Biden Administration and Congress to ensure that the package includes direct federal funding to meet the significant and longstanding infrastructure needs of Indian Country, as well as long needed tax reforms to provide Tribes with the same financing tools used by state and local governments, including parity for Tribes to issue Tax Exempt Bonds, and access to both the New Market Tax Credit and Low Income Housing Tax Credit programs. A more detailed description of infrastructure is also posted below. We have a full plate ahead in the 117 th Congress, and we are eager to get to work for you. The National Indian Gaming Association will host periodic virtual legislative summits until business returns to normal. We will be hosting our Annual Convention and Trade Show in July 2021 in Las Vegas, NV in partnership with RES 2021, National Center for American Indian Economic Development.
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President Biden’s Cabinet and Native American Appointees Serving in the Administration
Department
Nominee (*pending Senate confirmation)
State
Antony Blinken
Treasury Defense
Janet Yellen
Ret. General Lloyd Austin *Judge Merrick Garland *Rep. Debra Haaland (D-NM)
Attorney General
Interior
Principal Deputy Solicitor, Robert Anderson Deputy Solicitor for Indian Affairs, Anna Marie Bledsoe Downs Deputy Soliticor for Land Resources, Natalie Landreth Principal Deputy Assistant Secretary-Indian Affairs, Bryan Newland BLM Counselor, Danna Jackson Agriculture (USDA) former Sec. Tom Vilsack Director Farm Service Agency, Zach Ducheneaux Director Office of Tribal Relations, Heather Dawn Thompson Director OTR Forest Service, Reed Robinson Commerce
Rhode Island Gov. Gina Raimondo
Labor
*Mayor Martin Walsh
Health and Human Services
*CA Attorney General Xavier Becerra
Housing and Urban Development *Rep. Marcia Fudge (D-OH) Transportation Mayor Pete Buttigeig Deputy Assitant Secretary for Tribal Affairs, Rep. Arlando Teller Energy
former MI Gov. Jennifer Granholm
Director Office of Indian Energy, Wahleah Johns Education
Miguel Cardona (MA) Denis McDonough Alejandro Mayorkas
Veterans Affairs Homeland Security
White House Officials Domestic Policy Counsel, Elizabeth Rodke Washburn Intergovernmental Relations, Paawee Rivera COVID Advisory Board, Dr. Jill Jim
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117 th Congress: U.S. Senate Leadership and Committee Chairs
U.S. Senate Leadership
Majority Leader: Chuck Schumer NY
Minority Leader: Mitch McConnell KY Min. Whip: John Thune (SD) Conf. Chair: John Barrasso (WY) Conf. Vice Chair: Joni Ernst (IA) NRSC Chair: Rick Scott (FL)
Maj. Whip: Dick Durbin (IL)
Asst. Leader: Patty Murray (WA) Policy Chair: Debbie Stabenow (MI) DSCC Chair: Gary Peters (MI)
Committee
Chair
Ranking Member Lisa Murkowski (AK) John Boozman (AR) Richard Shelby (AL) Lisa Murkowski (AK) Jim Inhofe (OK) Pat Toomey (PA) Lindsay Graham (SC) Roger Wicker (MS) John Barrasso (WY)
Indian Affairs Agriculture Appropriations
Brian Schatz (HI)
Debbie Stabenow (MI) Patrick Leahy (VT) Jeff Merkeley (OR)
Interior Subcommittee
Armed Services
Jack Reed (RI)
Banking Budget
Sherrod Brown (OH) Bernie Sanders (VT) Maria Cantwell (WA) Joe Manchin (WV) Tom Carper (DE) Ron Wyden (OR) Patty Murray (WA)
Commerce
Energy & Natural Resources Environment & Public Works
Shelley Moore Capito (WV)
Finance
Mike Crapo (ID) Richard Burr (NC) Rob Portman (OH) Marco Rubio (FL) Chuck Grassley (IA) Jerry Moran (KS)
Health, Ed, Labor (HELP)
Homeland Security & Govt Affairs Gary Peters (MI)
Intelligence
Mark Warner (VA) Dick Durbin (IL) Jon Tester (MT)
Judiciary
Veterans’ Affairs
Senate Committee on Indian Affairs Members
Brian Schatz (HI) Chair Maria Cantwell (WA)
Lisa Murkowski (AK) Vice Chair
John Hoeven (ND) James Lankford (OK) Steve Daines (MT) Mike Rounds (SD)
Jon Tester (MT)
Catherine Cortez Masto (NV)
Tina Smith (MN)
Ben Ray Lujan (NM)
Jerry Moran (KS)
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117 th Congress: U.S. House Leadership and Committee Chairs
U.S. House of Representatives Leadership
Speaker: Nancy Pelosi (CA) Maj. Leader: Steny Hoyer (MD) Maj. Whip: Jim Clyburn (SC)
Minority Leader: Kevin McCarthy (CA)
Min. Whip: Steve Scalise (LA) Conf. Chair: Liz Cheney (WY)
Assistant Speaker: Katherine Clark (MA) DCCC Chair: Sean Patrick Maloney (NY)
Conf. Policy Chair: Gary Palmer (AL) NRCC Chair: Tom Emmer (MN)
Committee
Chair
Ranking Member
Natural Resources Bruce Westerman (AR) Indigneous Peoples Subcommittee Teresa Leger Fernandez (NM) Don Young (AK) Agriculture David Scott (GA) Glen Thompson (PA) Appropriations Rosa DeLauro (CT) Kay Granger (TX) Interior Subcommittee Chellie Pingree (ME) David Joyce (OH) Armed Services Adam Smith (WA) Mike Rogers (AL) Budget John Yarmuth (KY) Jason Smith (MO) Education and Labor Bobby Scott (VA) Virginia Foxx (NC) Energy and Commerce Frank Pallone (NJ) Cathy McMorris-Rogers (WA) Financial Services Maxine Waters (CA) Patrick McHenry (NC) Homeland Security Bennie Thompson (MS) John Katko (NY) Judiciary Jerry Nadler (NY) Jim Jordan (OH) Oversight & Government Reform Carolyn Maloney (NY) James Comer (KY) Transportation & Infrastructure Peter DeFazio (OR) Sam Graves (MO) Ways and Means Richie Neal (MA) Kevin Brady (TX) Raul Grijalva (AZ)
House Indigenous Peoples of the U.S. Subcommittee
Teresa Leger Fernandez (NM) Chair
Don Young (AK) Jay Obernolte (CA)
Ruben Gallego (A) Darren Soto (FL) Betty McCollum (MN)
Aumua Amata Coleman Radewagen (AS)
Jerry Carl (AL)
Michael San Nicolas (GU)
Matthew Rosendale (MT)
Ed Case (HI)
Lauren Boebert (CO)
Jesus “Chuy” Garcia (IL) Raul Grijalva (AZ) Ex Officio
Cliff Bentz (OR)
Bruce Westerman (AR) Ex Officio
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The American Rescue Plan: Key Tribal Provisions On Saturday, March 6, 2021, the U.S. Senate advanced its version of President Biden’s $1.9 trillion American Rescue Plan by a party line 50-49 vote. Senate procedural rules forced removal of provisions in the House- passed bill, most notably the increase in the federal minimum wage from $7.25 / hour to $15 / hour. The bill now moves back to the House for final passage before being sent to President Biden. The American Rescue Plan includes significant resources to help Indian Country address the health and economic crises created by the COVID-19 pandemic. The largest program in the bill for Indian tribbes would send $20 billion to tribal governments through the renamed Coronavirus Fiscal Recovery Funds (formerly the CARES Act - Coronavirus Relief Fund). Indian Tribes are defined as the governing body of a tribe included in the BIA’s annually published Federally Recognized Indian Tribes List. The overall Rescue Plan also provides + $6 billion for Indian health care programs and services, as well as increased funding for Indian education, housing, food distribution, child care, and more. House Leadership is working to complete debate and vote on the final bill on Tuesday, March 9 th . President Biden hopes to sign the bill into law before Sunday, March 14 th when Federal unemployment benefits begin to expire. Key Tribal Provisions in the American Rescue Plan Title IX. Committee on Finance. Sec. 9901. Coronavirus State and Local Fiscal Recovery Funds. “Sec. 602. Coronavirus Fiscal Recovery Fund.” The provision re-names the CARES Act Coronavirus Relief Fund (CRF) and provides $219.8 billion to tribal, state and territorial governments to address the health and economic crises caused by the COVID-19 pandemic. $20 billion is set aside for tribal governments, defined as the governing bodies of Indian tribes listed on the annual Federally Recognized Indian Tribes List Act. Of the $20 billion, $1 billion will be distributed equally to all 574 federally recognized tribes (approximately $1.7 million per tribe). The remaining $19 billion will allocated based on a formula determined by the Secretary of the Treasury. The “use of funds” under this provision is made more flexible for all governments to cover costs incurred: (A) “to respond to the public health emergency … or its negative economic impacts”; (B) “to respond to workers performing essential work” or “by providing grants to eligible employers that have eligible workers who perform essential work”; (C) “for the provision of governments services to the extent of the reduction in revenue of” Tribal governments; or (D) “to make necessary investments in water, sewer, or broadband infrastructure.” The term “eligible worker” is defined as “workers needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors” as may be designated by Tribal governments as critical to protect the health and well-being” of their residents. “Sec. 604. Coronavirus Capital Projects Fund.” Provides $50,000 to each federally recognized Indian Tribe (@$28.7 million) with an additional $21 million to be distributed to Tribes based on a formula “to carry out critical capital projects directly enabling work, education, health monitoring, including remote options, in response to COVID-19. “Sec. 605. Local Assistance and Tribal Consistency Fund.” Provides $250 million in FY22 and FY23 to “allocate and pay to eligible Tribal governments” as determined by the Secretary “taking into account economic conditions of each eligible Tribe.” The funds can be used “for any governmental purpose other than lobbying.” Sec. 9815. Extension of 100% FMAP to Urban Indian and Native Hawaiian Health Care Systems. This provision extends the 100% FMAP to Urban Indian and Native Hawaiian Health Orgs for two years. Sec. 9601. 2021 Recovery Rebates to Individuals. Provides $1,400 payments for single taxpayers making up to $75,000 ($2,800 to joint filers up to $150,000). Sec. 9201. Pandemic Emergency Fund—Emergency Assistance for Children and Families. Established the Pandemic Emergency Assistance Fund, appropriating $1 billion that will be available from April 1, 2021 to September 30, 2022. Of this amount, $74.85 million (7.5%) is reserved for tribal and territorial governments that are eligible for TANF grants. HHS will determine the allocation formula to Indian tribes. Sec. 9013. Extension of Pandemic Unemployment Assistance . Extends federal unemployment assistance benefits from the current expiration date of March 14, 2021 to September 6, 2021.
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Title XI. Indian Affairs Sec. 11001. Indian Health Service. Appropriates $6 billion, “to remain available until expended”, to the Indian Health Service for a range of Indian health activities, including $2 billion for lost reimbursements; $500 million for Purchased/Referred Care; $140 million for information technology, telehealth infrastructure, and electronic health records; $84 million for Urban Indian health organizations; $600 million for COVID-19 vaccines; $1.5 billion for COVID-19 testing, tracing, and mitigation; $240 million for public health workforce; $420 million for mental and behavioral health prevention and treatment; $600 million for facilities; and $10 million for water delivery. Sec. 11002. Bureau of Indian Affairs. Provides $900 million for BIA activities, “available until expended” for the following purposes: $100 million for the Housing Improvement Program; $772 million for tribal government services, public safety and justice, social services, child welfare assistance, and related expenses; and $20 million to provide and deliver potable water to Indian lands. Sec. 11003. Indian Housing. Provides $750 million for NAHASDA programs. From this amount, $455 million will be distributed through the Indian Housing Block Grants formula, and $280 million is dedicated to grants through the Indian Community Development Block Grant (ICDBG) system “to be used, without competition, for emergencies that constitute imminent threats to health and safety and are designed to prevent, prepare for, and respond to coronavirus.” Waivers are permitted to expedite implementation of approved ICDBG grants. Sec. 11004. Funding for Native Language Preservation . The bill provides an additional $20 million in FY’21 to ANA to award emergency grants for Native American language preservation and maintenance. Sec. 11005. Bureau of Indian Education. Provides $850 million for programs operated or funded by the Bureau of Indian Education (“BIE”), Bureau-funded schools, and Tribal Colleges or Universities. Sec. 11006. American Indian, Native Hawaiian, and Alaska Native Education. Provides $190 million to the Department of Education to be distributed for purposes authorized under the Elementary and Secondary Education Act for Native peoples. Title I. Agriculture Sec. 1005. Farm Loan Assistance for Socially Disadvantaged Farmers and Ranchers . Provides funds for payment or modification of existing USDA FSA loans and CCC Farm Storage Facility Loans held by socially disadvantaged farmers or ranchers. Sets payments at 120% of outstanding indebtedness, with amounts remaining after obligations to USDA or the guaranteed lender are paid, provided to the farmer to account for tax treatment. Ensures such payments do not affect the eligibility of farmers or ranchers for farm loans. Sec. 1006. Assistance for Disadvantaged Farmers, Ranchers, Forest Land Owners . Provides $1.01 billion to the Secretary for assistance to socially disadvantaged farmers, ranchers, and forest landowners who have historically faced discrimination by USDA, with such assistance provided directly to producers and through community-based organizations, land-grant universities, other minority serving institutions of higher learning. Sec. 1011. Supplemental Nutrition Assistance Program. Provides $1.15 billion for SNAP benefits, available through September 30, 2023. Title II. Health, Education, Labor and Pensions Sec. 2201. Child Care and Development Block Grants . Provides $14.99 billion will remain available through September 30, 2021 to carry out the Child Care and Development Block Grant Act of 1990 (“CCDBG”). Such funds are authorized for use by states, territories, Indian Tribes and Tribal Organizations for child care assistance to health care sector employees, emergency responders, sanitation workers, and other workers deemed essential during the response to the coronavirus without income eligibility requirements. Sec. 2202. Child Care Stabilization. Appropriates $24 billion for FY’21 for eligible child care providers for use in accordance with CCBDG. (Expires September 30, 2021). Sec. 2204. Programs for Survivors. This provision appropriates $180 million in additional funding through the Family Violence Prevention Act for FY’21 to help survivors of domestic and sexual violence. The provision includes $18 million to carry out grants for Indian Tribes. An additional $1 million will go to support Indian communities under the National Domestic Violence Hotline Grant. Sec. 2301. COVID-19 Vaccine activities at the CDC. Provides $7.5 billion to the CDC for COVID-19 vaccine distribution. Tribal governments are eligible for grants. Sec. 2402. SARS-COV-2 Genomic Sequencing and Surveillance. Provides $1.75 billion for genomic sequencing, analytics, and disease surveillance. Tribal health departments or laboratories are eligible for grants.
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Sec. 2703. Mental Health and Substance Abuse Disorder Training for Healthcare Professionals, Paraprofessionals, and Public Safety Officers. Provides $80 million for programs to reduce burnout and mental and behavioral health conditions among health care workers. Tribes and tribal organizations are eligible for grants. Sec. 2707. Local Behavioral Health Needs. Provides $50 million to SAMHSA for community behavioral health needs. Tribal governments and tribal organizations are eligible for grants. Sec. 2911. LIHEAP. Provides $4.5 billion for the LIHEAP program. Tribes are eligible for this LIHEAP funding. Sec. 2912. Water Assistance Program. Provides $500 million to HHS for grants to states and tribes to assist low- income households for drinking water and wastewater services. Up to 3% of funding is reserved for tribes. Title III. Banking, Housing, and Urban Development Sec. 3206. Homeowner Assistance Fund. Provides $9.9 billion to the Homeowner Assistance Fund for qualified expenses, which include: mortgage payment assistance, costs related to mortgage reinstatement or forbearance, mortgage principal reduction, interest rate reduction, utilities assistance, internet and broadband service, property taxes, homeowners insurance, and homeowner / association fees. The provision includes a 5 percent set-aside for tribes eligible to receive funding under NAHASDA, using the NAHASDA allocation formula. Sec. 3301. Small Business Credit Initiative Reauthorization . The provision reauthorizes and appropriates $10 billion for the State Small Business Credit Initiative first established in 2010 in response the Great Recession, which did not include direct funding to tribal governments. The updated reauthorization redefines the term “State” to include “Indian tribes” and provides tribes with a 5 percent set aside ($500 million) from the total allocation. The Treasury Secretary will develop the allocation formula based on available employment and economic data. Tribes that want to participate must file a notice of intent with the Treasury within 30 days of passage of the Act. Funds shall be allocated within 60 days of passage. Tribal and State governments must also “provide the Secretary with a plan detailing how minority depository institutions and CDFIs will be encouraged to participate”, including a description of how they will “expeditiously utilize funds to support small businesses, including businesses owned by socially and economically disadvantaged individuals, in responding to and recovering from the economic effects of the COVID–19 pandemic.” The program will expire on September 30, 2030. Title V. Small Business and Entrepreneurship Sec. 5001. Paycheck Protection Program . The bill modifies eligibility requirements for the PPP and provides an addtional $7.25 billion appropriation for the program. Sec. 5003. Support for Restaurants. Appropriates $25 billion to establish the Restaurant Revitalization Fund – $5 billion is set-aside for businesses with revenue of $500,000 or less in 2019. The fund provides grants of up to $10 million, with a limit of $5 million per location, for FY 2021. The term “Tribally-owned concern” as defined in 13 CFR Part 124.3, are eligible for these funds. Authorized activities and uses of the funds include payroll, mortgage, rent, utilities, supplies, paid leave, and operational expenses. Title VI. Environment and Public Works Sec. 6002. Pollution and Disparate Impacts of the COVID-19 Pandemic. Provides $100 million to EPA, including $50 million in grants to address environmental justice, and $50 million for Clean Air Act grants. Title VII. Commerce, Science, and Transportation Sec. 7001. FEMA Appropriation. Provides $50 billion, which will remain available until September 30, 2025, for reimbursement to state, local, tribal, and territorial governments dealing with ongoing COVID-19 response and recovery activities. Sec. 7402. E-Rate Support For Emergency Educational Connections and Devices. Provides $7.6 billion to the FCC for schools and libraries, including tribal schools, libraries, community centers, or government buildings, to purchase wifi or other internet connection devices and laptop computers. Enhance the Tribal Land to Trust Process The U.S. Supreme Court’s Carcieri v. Salazar decision has plagued the Indian Reorganization Act’s (IRA) tribal land to trust process for more than a decade. The decision upended the 75 years of precedent, reinterpreting the IRA as limiting the Interior Secretary’s authority to place land into trust
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for only those Indian tribes that were “under federal jurisdiction” in 1934. The Carcieri decision has stalled the administrative land into trust process, adding the significant burden on tribes applying to have fee lands placed into trust to first obtain a positive legal determination from the Interior Solicitor that the tribe was “under federal jurisdiction” in 1934. This process requires detailed historic research and legal analysis. This relatively new process demands added attorneys, historians, and takes years to complete. Nothing in the congressional debate on the IRA or legislative history helps define the term “under federal jurisdiction”. To help maintain the tribal land to trust process in light of the Carcieri decision, the Obama Administration’s Interior Department issued M-Opinion (M-37029) titled “the Meaning of ‘Under Federal Jurisdiction’ for Purposes of the IRA” on March 12, 2014 116 th Congress: Efforts to Achieve a Legislative Carcieri Fix Inter-tribal organizations from throughout Indian Country remain united behind the goal of restoring the intent and purpose of the IRA’s Indian land to trust process. Companion bills were introduced in the 116 th Congress to accomplish a clean Carcieri fix, which would simply delete the term “under federal jurisdiction” and amend the IRA to clarify that the Interior Secretary has authority to place land into trust for all federally recognized tribes. Rep. Tom Cole (R-OK) introduced the House bill, which passed the bill by a wide bipartisan vote of 323 – 96 on May 15, 2019. Senators Jon Tester (D-MT) and Jerry Moran (R-KS) introduced the Senate companion bill on November 7, 2019. The bill has 11 co-sponsors and has been referred to the Senate Committee on Indian Affairs. However, the SCIA held no hearings and failed to advance the bill in the 116 th Congress. Indian Country will look to restart the process in the 117 th Congress to achieve this longstanding legislative priority. Tribes will call upon leaders of the Senate Committee on Indian Affairs and House Natural Resources Committee to schedule oversight and legislative hearings on the need to improve the tribal land to trust process, and advance legislation to address the ongoing concerns of the Court’s 2009 Carcieri decision. Improving the Administrative Land to Trust Process On March 9, 2020, at the beginning of the COVID-19 pandemic, the Trump Administration Interior Solicitor withdrew the Obama Interior Department’s 2014 M-Opinion that helped facilitate tribal land to trust applications in light of the Carcieri decision. The 2014 M-Opinion lays out requirements for a tribe submitting a land to trust application pursuant to the IRA to prove that it was under federal jurisdiction in 1934. The Trump Administration withdrew the M-Opinion and replaced it with guidance that most tribes view as more restrictive to achieving a positive “under federal jurisdiction” determination. A top tribal policy priority for 2021 will be working with the Biden Administration to improve upon the 2014 M-Opinion and to reissue a new M-Opinion that will better enable all federally recognized Indian tribes to comply with the Indian Reorganization Act to restore ancestral tribal government homelands.
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The Need to Protect Tribal Sovereign Immunity Sovereign (or governmental) immunity provides federal, state, local, and tribal governments with a legal defense from lawsuits absent consent of the government being sued. The legal doctrine was established to shield governmental revenues from potentially limitless liability and lawsuits, which could threaten essential government services and programs. Tribal sovereign immunity is a foundational aspect of tribal government sovereignty. The Supreme Court in Michigan v. Bay Mills Indian Community (2014), reaffirmed the importance of tribal sovereign immunity, citing long-standing Supreme Court precedents: “Among the core aspects of sovereignty that tribes possess—subject, again, to congressional action—is the 'common-law immunity from suit traditionally enjoyed by sovereign powers.' That immunity, we have explained, is 'a necessary corollary to Indian sovereignty and self- governance.…’ Thus, we have time and again treated the 'doctrine of tribal immunity [as] settled law' and dismissed any suit against a tribe absent congressional authorization (or a waiver). (citations omitted). Tribes face the same basic obligations to their citizens as state, local and other governments. Tribes work to maintain public safety; provide for the health, education, and general welfare of their citizens and residents; and establish and maintain public infrastructure for water, transportation, communications, and economic development. As a result, sovereign immunity remains a critical legal doctrine to protect tribal governments from unending lawsuits that would cripple their ability to provide essential governmental services and functions to their citizens. While tribal sovereign immunity is acknowledged as a core aspect of tribal sovereignty and a key to the self-sustaining tribal government economies, the doctrine is under growing threat in the federal and state courts, and by some in Congress. Despite the Supreme Court’s adherence to precedent and repeated decisions upholding tribal immunity, the Court has indicated that it may consider exceptions to tribal sovereign immunity. For example, the Court in Lewis v. Clarke (2017), upheld tribal sovereign immunity, but offered an end-run by holding that a tribal employee can be sued in his or her individual capacity even when a tribal government has agreed to indemnify its employee for damages. A growing number of federal and state cases have been filed challenging tribal sovereign immunity for torts, patent actions, and claims involving tribal government-owned businesses. In the face of these challenges, Indian Country is uniting to protect and reaffirm tribal sovereign immunity. The National Indian Gaming Association, our Member Tribes, and sister tribal organizations urged Congress to examine these increased attacks on the doctrine, reaffirm the continued need for tribal sovereign immunity to protect tribal government revenues and economies, and to explore the development of tribal government risk management pools, alternative dispute resolution, and related measures to reduce the likelihood of injuries that could take place in association with governmental economic activity. Our work resulted in the Report language posted below, which was included in the FY’21 Year End Omnibus Appropriations Bill that directs the U.S. Department of Justice – Office of Tribal Justice to work with tribes to study this important issue and report to Congress on methods to improve protections to tribal immunity: Tribal Sovereign Immunity. —The Department’s Office of Tribal Justice [OTJ] serves as the point of contact for federally recognized tribal governments and tribal organizations with respect to legal and policy matters in Indian Country. Within the funds provided for General Administration, not less than $50,000 is for OTJ to consult with tribal entities concerning risk management, loss prevention, the resolution of tort claims, alternative dispute resolution, and protecting and managing tribal sovereign immunity in the context of economic development. The Committee directs OTJ to submit a report, within 1 year of the enactment of this act, describing best practices for tribal risk management.
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Infrastructure Revitalization: Indian Country’s Unmet Needs Background. Indian Country’s infrastructure backlog is estimated to stand at more than $50 billion, covering the entire range of basic structures and systems. The COVID-19 pandemic laid bare the infrastructure shortfalls throughout Indian Country. Overcrowded homes, substandard health systems and facilities, and broken water systems all contributed to spreading the virus in Native communities. As schools closed, the lack of broadband made it impossible for many students to engage in remote learning. In addition to being a direct threat to the health of Native communities, these longstanding infrastructure disparities have served as a barrier to economic development in Indian Country for generations. The lack of basic infrastructure deters outside investment, leads to the loss of critical business opportunities and economic development projects, handcuffs Native entrepreneurs, and generally leaves much of Indian Country behind. Include Indian Country in National Infrastructure Revitalization. President Biden campaigned on a sprawling infrastructure agenda, with trillions of dollars invested in transportation, water and sewer lines, and the scaffoldings of an energy sector that significantly reduces the United States’ carbon emissions, funded by tax increases on multinational companies and high earners. Any infrastructure proposal must include direct federal funding to address the significant unmet infrastructure needs of Indian Country. Investing in Indian Country infrastructure will repair unsafe reservation roads for school children and public safety officials, spur short-term job growth through construction, foster long-term economic development by opening doors for Native entrepreneurs, and stabilize and diversify tribal economies for generations to come. These direct federal investments in Indian Country infrastructure should be coupled with innovative financing mechanisms to establish and strengthen tribal government-private sector partnerships and access to capital. The U.S. Tax Code provides broad tools to state and local governments to spur outside investment in infrastructure projects. While the $1.5 trillion Tax Cuts & Jobs Act of 2017 failed to include any tax reforms for Indian Country, infrastructure revitalization provides Congress with a new opportunity to reform the Tax Code to extend tax incentives to tribal governments, better enabling them to address long-standing infrastructure needs. Indian Country holds significant untapped economic potential, job growth, and small business development that could be unlocked with investments in Indian Country infrastructure—which can be built, in part, with targeted tax reform measures. Potential capital improvement proposals include: developing an investment bank to pool direct funding with private investment incentives to meet tribal infrastructure needs; enhancing existing federal loan guarantee programs that enable tribes to leverage limited capital; and focusing on telecommunications infrastructure to effectively increase opportunities for small Native businesses, streamline tribal government operations, and improve access to telehealthcare and education. Reforms to federal tax programs should address the lack of tribal access to or benefit from the Low Income Housing Tax Credit and New Markets Tax Credit programs; limitations imposed on tribes by the tax-exempt bond provisions of the Tribal Government Tax Status Act; and ensuring that the Build America Bonds or any similar new program provides direct funding to Indian Country or a significant set-aside for tribal governments. Direct access to these programs will spur tribal government-private sector partnerships to help rebuild Indian Country infrastructure, develop small business, and improve tribal government systems nationwide.
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HEALING TRIBAL ECONOMIES FINAL UPDATED PROGNOSIS FOR ECONOMIC RECOVERY FROM COVID-19 IN INDIAN COUNTRY FEBRUARY 2021
To our clients and friends in Indian Country and all working to improve the economic future for Native American people: KlasRobinson Q.E.D. is pleased to present the accompanying update of our June white paper and September update entitled: “Healing Tribal Economies – Updated Prognosis for Economic Recovery from COVID-19 in Indian Country." With the passage of eight months since our original report and a full year since the pandemic first hit the U.S., we have much more information on the behavior of the disease itself and of the government officials, business leaders and general population in response. The pandemic is not over. In fact, it may yet spike again due to mutations in the virus and the time necessary to vaccinate a sufficient number of people to finally constrain it. The toll had been horrific and the time to fully recover economically and psychologically will be significant. Nevertheless, a practical end to the crisis atmosphere and worst restrictions is in sight. As a result, we expect this to be the last update of our prognosis and prescriptions to be required. Our hope continues to be that this work will provide tribes with more than simply another set of predictions, but also the analytical discussion to be able to draw their own conclusions in developing plans for their people and adjust those plans over time as new data becomes available. To do this, we have taken our more than 30 years of experience forecasting future outcomes for more than 250 tribes and applied it to this very troubling situation to give our best estimates and recommendations for tribal economic recovery from COVID-19. One thing we still know for sure: as bad as this is, tribal leaders have weathered far more severe storms throughout history and will survive the current crisis to continue to protect their cultures and their people. Indeed, their efforts thus far have been both heroic and effective. KlasRobinson Q.E.D.
James M. Klas Founder & Principal
Matthew S. Robinson Founder & Principal
HEALING TRIBAL ECONOMIES FINAL UPDATED PROGNOSIS FOR ECONOMIC RECOVERY FROM COVID-19 IN INDIAN COUNTRY
Cover Letter
TABLE OF CONTENTS
PAGE INTRODUCTION ................................................................................................. 1 EXECUTIVE SUMMARY .................................................................................... 4 COVID-19 AND CIVIC RESPONSE .................................................................... 9 GENERAL ECONOMIC CONDITIONS ............................................................. 18 TRIBAL GOVERNMENT GAMING ................................................................... 24 OTHER INDUSTRY SECTORS ........................................................................ 33 PRESCRIPTION SUMMARY ............................................................................ 57 MONITORING FUTURE HEALTH .................................................................... 69 ADDENDUM: PROFILE OF KlasRobinson Q.E.D.
HEALING TRIBAL ECONOMIES FINAL UPDATED PROGNOSIS FOR ECONOMIC RECOVERY FROM COVID-19 IN INDIAN COUNTRY
INDEX OF CHARTS
PAGE
Tribal Economic Prognosis Summary
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Top 10 Countries by Total Cases Confirmed: February 3 Top 10 Countries by Total Deaths: February 3 Fatality Rate as of February 3 (All Countries with 500,000+ Cases) Deaths per 100,000 as of February 3 (All Countries with 500,000+ Cases)
11 12 13 14 15 17 22 23 26 28 30 32 35
Positivity Rates of Top 15 Testing Jurisdictions Relative Likelihood of COVID Outcomes Forecast Change in GDP and Relation to 2019 Level Forecast Unemployment and Inflation Rates
FY 2019 Indian Gaming Revenue Distribution by Region Indian Casinos Closures and Re-Openings Comparative Casino Hotel Revenue per Available Room by Month Actual, Estimated and Forecast Indian Gaming Industry Revenue: 2017-2022 Comparative Non-Casino Hotel Revenue per Available Room by Month Forecast Change in Non-Casino Tourism, Lodging & Leisure Revenue from Prior Year & Comparison to 2019 Forecast Change in Tribal Agriculture Revenue from Prior Year & Comparison to 2019 Forecast Change in Tribal Mining & Extraction Revenue from Prior Year & Comparison to 2019 Forecast Change in Tribal Construction Revenue from Prior Year & Comparison to 2019 Forecast Change in Tribal Manufacturing Revenue from Prior Year & Comparison to 2019 Forecast Change in Tribal Wholesale Trade Revenue from Prior Year & Comparison to 2019 Forecast Change in Tribal Retail Trade Revenue from Prior Years & Comparison to 2019 Forecast Change in Tribal Transportation & Warehousing Revenue From Prior Years & Comparison to 2019 Forecast Change in Tribal Revenue from Other Sectors from Prior Year & Comparison to 2019
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52 55
Average PPP Loan Amounts
INTRODUCTION
In June of last year, faced with a global health and economic crisis unseen in generations, we felt the need to take the time to research and analyze the potential patterns and impacts of the pandemic and associated mitigation efforts on tribal economies, for our own knowledge and benefit and for our clients and Indian country as a whole. That the extraordinary crisis was occurring in the midst of an election year and the greatest surge in racial and social unrest in decades only added to the uncertainty. It was both predictable and already evident that the pandemic and accompanying economic upheaval would affect Native Americans disproportionately. The questions were: how badly, how long, and how to recover? Based upon the information available at the time and assumptions regarding the course of the virus and efforts to contain it, KlasRobinson Q.E.D.* extrapolated the available information, combined with evidence from the history of other pandemics and other economic crises, to issue an initial prognosis for tribal economies and prescriptions for actions tribes could take to reduce negative impacts and speed recovery. In September, armed with three months of additional data, but before any vaccine, before the election and before the worst of the daily caseloads and deaths, we updated our prognosis to reflect certain patterns already emerging. By that time, the concept of stay-at-home orders had effectively been abandoned and business shut downs and other restrictions had been reduced despite significant increases in caseloads and continued increases in deaths. While the even more severe spike in cases and deaths in the fall and early winter led to a partial resumption of more stringent restrictions on business, travel and personal activity, they were more narrowly targeted geographically and by type. The primary tool for pandemic control became mask wearing, which had problems with popularity and compliance in itself. The limits of that tool as the primary public health response in the absence of other controls on human interaction have been clearly seen, primarily due to predictable compliance issues. However, the collective revulsion at the severity of the economic effects of more severe restrictions and a restiveness at all levels over the length of time they were imposed has severely limited any other pandemic control options. As already seen in September of last year and tragically even more obvious subsequently, the results from a public health perspective have been an undeniable failure by any objective standard. From an economic perspective, the results have been mixed, but better overall than originally feared. While the economy has been severely affected by the pandemic even where public health measures were minimal, there has been definite evidence of resiliency in the economy and a continued strong desire on the part of business, consumers and government to resume as much economic activity as possible as soon as possible.
* KlasRobinson Q.E.D. has considerable experience in analyzing tribal economic development. For a profile of the company, please see our website at www.klasrobinsonqed.com
∴ INTRODUCTION
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We are now a full year since the pandemic began in the U.S. and more than eight months since our original report. Vaccines are now being distributed and the case and death rates have fallen significantly since the overwhelming peaks in December and January. The election has occurred and a new administration is in place, allowing for greater certainty in governmental actions going forward. Year-end figures for key economic measures are now available, although many more detailed statistics will not be released for weeks or months. A smaller relief measure was passed late last year and a second one is likely to pass in some form within the next 60 days. There is a collective and reasonable sense that an end, if still several months away, is visible on the horizon. This does not mean that either the pandemic or the economic crisis have come to an end as yet. Mutated versions of the virus that are more easily transmissible are becoming dominant. Despite the urgency, vaccinations will inevitably take more time, measured in months, not days or weeks. There is a race between vaccinations and the disease mutations that we may not win. There is also some question as to whether any of the mutations may reduce or circumvent the effectiveness of the vaccines currently being used. From an economic perspective, new patterns of work, shopping and life in general have taken hold and may produce permanent changes in business patterns even after the pandemic is brought to heel. The multiple relief and stimulus efforts that have been undeniably necessary and effective must come to an end eventually. When they do, and when governments and businesses reckon with the hidden costs and return to regular practices, areas of weakness in the economy, hidden or softened so far, will become painfully obvious and require redress. Even with better than expected, or at least feared, economic results to date, potential recessionary and inflationary pressures in the future cannot be completely dismissed. While plenty of unknowns remain, the true crisis phase will indeed come to an end within the next few months. Indian country, along with the rest of the country, will be able to breathe a sigh of relief and then move ahead with the hard work of recovery and new growth. With the end of the pandemic and the movement to long-term recovery and growth, the need for this specific type of crisis analysis will subside. This will be the last update of our pandemic analysis. We look forward with all of Indian country to shifting our efforts to regaining lost ground and advancing to a brighter future.
∴ INTRODUCTION
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EXECUTIVE SUMMARY
GENERAL
This section describes, in brief, the findings and conclusions derived from our updated analysis of the effects of the COVID-19 pandemic and associated mitigation efforts on tribal economies. This overview includes our updated assumptions for the course of the pandemic and our updated forecasts for tribal economic damage and recovery. However, the estimates presented, along with the information in this section as a whole, are meant as a summary of, not a substitute for, the body of the report, which contains additional information and detail critical to a full understanding of the bases for the estimates made and the context within which they were formed.
PROGNOSIS
As of February 3, 2021, the United States accounted for 25.4 percent of all COVID-19 cases worldwide, 146 percent higher than the next closest country, and 19.9 percent of all deaths worldwide, more than 98 percent higher than the next closest country, according to data from the Johns Hopkins Coronavirus Resource Center. The U.S. ranks 77 th out of 173 countries listed in terms of the case fatality rate, recorded deaths to recorded cases, meaning 76 countries have a lower rate. The U.S. ranks 164 th out of 173 countries in deaths per capita, meaning only nine countries have had more deaths per capita. Many of the countries included in the Johns Hopkins figures have had very few cases. While no country can compare to the number of U.S. cases, it is reasonable to narrow the comparative analysis to countries with significant caseloads. There were 33 countries that had experienced at least 500,000 cases as of February 3 rd . Of those 33 countries, the U.S. is tied for sixth best in terms of its case fatality rate but fifth worst in terms of deaths per capita. The toll in Indian country has been particularly severe. According to IHS data, a total of 1,951,037 people had been tested at IHS facilities as of February 2 nd . The tests resulted in 179,279 positive confirmed cases of the virus with a positivity rate of 9.9 percent, over two percentage points higher than the U.S. average. According to the CDC, American Indian and Alaska Native populations are 1.8 times more likely than non- Hispanic Whites to get COVID-19, 4.0 times more likely to be hospitalized and 2.6 times more likely to die from the disease. The concept of large-scale shutdowns of all but essential activities has been abandoned, even in the areas taking the most aggressive public health mitigation steps. Mask usage has become the primary means of combating public spread, despite acknowledged weaknesses in its effectiveness. While more narrowly targeted restrictions on personal and business activities remain in use, the clear trend is to minimize such restrictions, even in the face of caseloads that surpass the levels of last spring.
∴ EXECUTIVE SUMMARY
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Government, business leaders and individuals are consistently looking for reasons not to extend or enhance protective measures rather than reasons to leave them in place. While there are clear and sharp political and social divides over specific practices, these trends are neither isolated nor unclear. Political and social differences are variations on the same theme, rather than truly divergent approaches. Overall, the economic impact of the pandemic and associated mitigation efforts was generally less severe in 2020 than first feared but heavy nevertheless. GDP was down 3.5 percent for 2020. The unemployment rate for 2020 averaged 8.1 percent. The consumer price index (CPI-U) for 2020 increased 1.4 percent. The clear policy decision to emphasize economic recovery as much as possible, even in the face of greater case loads and death tolls, resulted in less severe economic impacts in the third and fourth quarters. There are also signs of greater resilience in business and consumer attitudes and behavior than originally expected, suggesting faster recovery once the pandemic is finally tamed, which we now assume to occur by the end of June. Substantial, but by no means full, recovery across most sectors is expected for this year. By the end of 2022, most sectors are expected to have reached full recovery. However, certain sectors are still not forecast to reach full recovery until 2023. With the pandemic and the economy moving from the acute crisis phase to the transitional phase, this will be our last update. We have taken the opportunity for this final update to use year-end data and more in-depth analysis to generate estimates of the actual loss of government revenue to Indian tribes. Federal support has helped mitigate that decline to a degree, with $8.0 billion set aside in the original CARES act for tribal governments. However, the CARES act included significant restrictions on the uses of that funding that have reduced its benefits to Indian country. Based upon our analysis, we estimate that the negative budgetary impact on tribal governments in 2020, after accounting for federal relief/stimulus efforts to date, equaled between $9.0 billion and $12.0 billion. For 2021, we forecast an additional negative budgetary impact on tribal governments of $1.9 to $3.0 billion, for a cumulative shortfall of between $10.9 billion and $15.0 billion. This information is presented in the table below:
Estimated Loss of Tribal Government Funding (net of CARES act and other stimulus payments to date)
2020 (estimated)
-$9.0-$12.0 billion
2021 (forecast)
-$1.9-$3.0 billion
Cumulative Loss (net of stimulus to date):
-$10.9-$15.0 billion
Source: KlasRobinson Q.E.D.
∴ EXECUTIVE SUMMARY
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