2021 MEMBERSHIP BOOK
To our Member Tribes and Partners:
This past year has tested the resolve of the entire nation. We have all suffered unthinkable losses - the COVID-19 pandemic created a health and economic crisis in the United States, taking more than 600,000 American lives, infecting nearly 29 million Americans, and more than 10 million remain unemployed. While the COVID-19 pandemic spared no one, it disparately impacted Native Nations from both a health care and economic perspective. In March of 2020, tribal governments took immediate action to prevent transmission of the virus and to protect the safety of employees, guests, and our communities. Knowing that prior pandemics inflicted death and trauma on Native communities at rates four times the national average, tribal leaders nationwide closed enterprise operations and issued lockdown orders in early March to help stop the spread of the coronavirus. Despite these significant precautions, 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. In these early days of the pandemic, the National Indian Gaming Association immediately united with our Member Tribes and sister tribal organizations to help Indian Country meet this unprecedented challenge. In late March of 2020, we worked with federal policymakers to secure $8 billion in direct funding to
Tribal Governments through the CARES Act to help blunt the economic devastation caused by the pandemic. While the CARES Act helped provide a bridge to keep Indian Country moving, the United States suffered the steepest surges of infections and deaths through the winter of 2020-21. The National Indian Gaming Association never slowed in our outreach. We consistently urged Congress to enact a COVID-relief package that included $20 billion for Tribal Governments to build on the CARES Act that was more flexible and better respected the local decision-making of tribal leaders. The November 2020 elections brought significant changes in leadership to Washington, D.C. Our Association worked seamlessly with the incoming Biden Administration and congressional leaders to deliver more than $31 billion through the American Rescue Plan (ARP) for Indian Country. The ARP delivered the economic relief Indian Country needed in the form of $20 billion in Fiscal Recovery Funds that are going directly to Tribal Governments. The Plan also provides significant resources to the Indian health care system, Tribal housing, education, language preservation and other critical services. Set asides were included throughout the American Rescue Plan to provide direct funding to Tribal Governments on par with state and territorial governments. Possibly the most important aid to helping Indian Country begin to emerge was the Biden Administration’s work with tribal leaders to distribute vital vaccines throughout Indian Country. Thanks to this work, we are carefully opening our communities. However, as noted above, much work lies ahead to ensure this devastation is not revisited. We must continue our work to build even more resilient communities. To accomplish this goal, the National Indian Gaming Association is again uniting with our Member Tribes and sister tribal organizations in working with the Biden Administration and Congress as they develop legislation to revitalize America’s infrastructure. 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. Any infrastructure proposal must include direct federal funding to address these significant unmet infrastructure needs. In addition to helping address these immediate needs, investing in Indian Country’s infrastructure will work to 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 must be coupled with long-needed changes to the Tax Code. While the Tax Code provides state, local, and territorial governments with preferred access to capital and tax credits that help them finance infrastructure projects, these same tools are not directly available to Tribal Governments. These omissions suffocate tribal economies, feed into high unemployment rates, and limit opportunity on Indian lands. The most glaring examples of the Tax Code’s failure to respect Indian tribes as governments are found in the federal Low Income Housing Tax Credit program (LIHTC), the New Markets Tax Credits, and Tax
Exempt Bonding authority. Securing legislative fixes to respect the governmental status of Indian Tribes will help establish and strengthen tribal government-private sector partnerships and access to capital. Congress has struggled for more than a decade to deliver for the American people on an infrastructure package. However, we must continue our work in Washington, D.C. to meet this historic moment. The coronavirus pandemic has taken so much from so many. But it also showed us what is possible when Indian Country unites behind the common purpose of working together to build a better place for all generations to come. My continued prayers go out to hundreds of thousands of American families who lost loved ones over the past year. We pray for a safe journey for those who have walked on, for the continued safety of our frontline workers, and for the continued health and safety for our tribal communities. We have a full plate ahead in the 117 th Congress, and we are eager to get to work for you. On behalf of the National Indian Gaming Association, I would like to express my deepest gratitude for all of our Member Tribes’ support throughout these trying times, and we will always continue to serve and fight for you. We will host periodic virtual legislative summits until business returns to normal, with the exception of our Mid-Year Conference and Tradeshow, happening November 15-17 at Pechanga Casino & Resort. We look forward to seeing you this week in Las Vegas.
Sincerely,
Ernest L. Stevens, Jr. Chairman
224 Second Street SE, Washington, DC 20003 • Tel. (202) 546-7711 • www.indiangaming.org
FEDERAL LANDSCAPE AND POLICY OPPORTUNITIES INDIAN GAMING TRADESHOW & CONVENTION 2021
Historic Confirmation of Secretary Haaland………………………
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Native Americans Serving in the Biden Administration…………
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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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Infrastructure Revitalization: Indian Country Needs …………….
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H.R. 4308, Removing Barriers to Mobile Wagers on Indian Lands
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The Historic Appointment of Secretary Deb Haaland It is often said that, “personnel is policy” – a President’s advisors and agency officials provide deep insight into the policy positions that the Administration will press for the duration of the four-year term. The most impactful decisions that a President makes are the nominations made to appoint cabinet-level positions. On December 17, 2020 then-President Elect Biden made the announcement that he would nominate Rep. Deb Haaland to serve as Secretary of the Interior. To say this nomination is a historic moment in Indian Country would be an understatement. The Senate Energy and Natural Resources Committee held a hearing on the nomination on February 23, 2021. Rep. Don Young (R-AK) introduced Rep. Haaland, providing a key endorsement of her nomination. The full Committee approved the Haaland nomination on March 4, 2021, with Alaska Republican Senator Lisa Murkowski joining all Committee Democrats voting to approve the nomination. The full Senate confirmed President Biden’s nomination of Secretary Haaland on March 15, 2021 by a vote of 51-40. Four Republicans joined 47 Democrats, voting in favor of her nomination. Four months into the historic term of Secretary Haaland, early actions indicate that she will place a careful focus on Interior’s decision-making on issues relating to Native cultural preservation, land restoration, climate impacts on Native communities, and the centuries long need to face the past, educate the public, and move all of Indian Country forward. A Return to Preserving Native Culture The Interior Department manages more than 500 million acres of public lands. Interior agencies make determinations about whether to open these public lands for oil and gas drilling and other development. For decades, decision makers have ignored the impacts of federal actions on tribal government treaty rights and sacred places on these federal lands. Haaland’s first trip as Interior Secretary was a visit to the Bears Ears National Monument in early April. She hiked and held three days of meetings with tribal leaders, members of the Bears Ears Inter-Tribal Coalition, the Governor of Utah, and members of the Utah federal delegation to discuss the current status of the Monument. The 1906 Antiquities Act authorizes the president to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” Former President Obama established the Bears Ears National Monument on December 28, 2016. The Monument protects 1.35 million acres, more than 100,000 objects of historic significance, including burial sites, ceremonial grounds, and ancient cliff dwellings. Tribes and advocates sought to preserve the area for decades. In his proclamation designating the Bears Ears Monument, then-President Obama noted that the area represents “one of the densest and most significant cultural landscapes in the United States, [containing] rock art, ancient cliff dwellings, ceremonial sites, and countless other artifacts that provide an extraordinary cultural record." On December 4, 2017, former President Trump slashed the size of the Bears Ears National Monument by 85 percent to 228,000 acres, opening 1.1 million acres of formerly protected lands to leasing for oil and gas development. In early June, Secretary Haaland submitted the Interior Department’s recommendation to President Biden relating to the restoration of Bears Ears and two other National Monuments that were diminished by the previous administration. The recommendations remain under review at the White House. According to Indian Country Today Reporter-Producer, Ailyah Chavez (Kewa Pueblo), Secretary Haaland’s first business trip also included a visit to her homelands. On April 6, 2021, she held a listening session with Members of the All Pueblo Council of Governors at the Indian Pueblo Cultural Center in Albuquerque, New Mexico. Former Cochiti Pueblo Gov. Regis Pecos described the meeting as a “profoundly defining moment…. Their availability to
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have this kind of really frank and honest discussion is something I’ve not seen in my 40 years of work in this area.” See https://indiancountrytoday.com/news/deb-haalands-visit-home-grandparents-prayers. Pueblo Governors also expressed their hope that the Interior Department would extend greater protections to the Chaco Culture National Historic Park that is held as sacred by their people. Restoring Tribal Homelands In April, Secretary Haaland took decisive action to reverse a course set by the previous administration that harmed the ability of Tribal governments to restore their land base. She announced several decisions to reverse actions that complicated the Indian Reorganization Act’s (IRA) Indian fee to trust process. Indian tribes lost or had taken hundreds of millions of acres of tribal homelands through past policies of Removal, Allotment, and Termination. The IRA provides Tribal governments with a federal process to restore lands to Native communities. The Obama Administration prioritized the tribal land to trust process, approving applications to move more than 560,000 of tribal fee lands into trust status from 2009 - 2017. It has been reported that the Trump Administration approved approximately 75,000 acres into trust from 2017 - 2021. To help expedite the land to trust process, on April 27, 2021, Secretary Haaland issued Secretarial Order No. 3400, which returns review of tribal fee land to trust applications to regional BIA directors. The order reverses a 2017 move to place these decisions under the jurisdiction of department headquarters, where they lingered for years. Secretary Haaland acknowledged, “[W]e have an obligation to work with Tribes to protect their lands and ensure that each Tribe has a homeland where its citizens can live together and lead safe and fulfilling lives.” Secretary Haaland also approved the revocation of past Interior legal opinions that added burdens on tribal governments as they seek to use the IRA’s land into trust process. The decision restored the Obama Interior Department’s 2014 M-Opinion to determine whether a Tribe was “under federal jurisdiction”, a relatively new process that was made necessary due to the Supreme Court’s 2009 Carcieri v. Salazar decision. The Department is reviewing the current land to trust process, and will soon release details on proposals to improve the system. Moving Forward While Confronting the Past On June 22, 2021, Secretary Haaland announced the Department’s “Federal Indian Boarding School Initiative”, which will investigate the loss of human life and the lasting consequences of residential Indian boarding schools. The investigation will gather records and information related to the Department’s oversight and implementation of the Indian boarding schools, conduct formal consultations with Tribal Nations on all matters relating to the Initiative. A final written report on the investigation will be submitted to the Secretary by April 1, 2022. The atrocities of government boarding schools for Native children were highlighted with the recent discovery of unmarked graves of indigenous children in Canada. In an op-ed published in the Washington Post, Secretary Haaland detailed the “United States’ history of taking Native children from their families in an effort to eradicate our culture and erase us as a people. It is a history that we must learn from if our country is to heal from this tragic era.” She added, “I am a product of these horrific assimilation policies. My maternal grandparents were stolen from their families when they were only 8 years old and were forced to live away from their parents, culture and communities until they were 13. Many children like them never made it back home.” Secretary Haaland acknowledged that the lasting and profound impacts of the federal government’s boarding school system have never been appropriately addressed. “I know that this process will be long and difficult. I know that this process will be painful. It won’t undo the heartbreak and loss we feel. But only by acknowledging the past can we work toward a future that we’re all proud to embrace.” The historic term of Interior Secretary Deb Haaland is an opportunity to put this past to rest, educate the American public, and help Native communities heal, while setting new precedent and opening a new era for Indian tribes to work in true partnership with the United States to improve the lives of reservation residents.
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Native American Appointees Serving in the Biden Administration Indian Country applauds the Biden Administration’s decisions to restore and elevate official positions throughout the federal government to improve tribal government access to federal decision-making. The Administration has begun to appoint key officials in the various agencies who will be dedicated to developing and implementing Indian Affairs policies for the coming term. Below is a listing of Native Americans appointed and nominated by President Biden to serve in his administration. White House Appointments Elizabeth “Libby” Washburn (Chickasaw Nation), Special Assistant to the President for Native Affairs - Domestic Policy Counsel (DPC) – Ms. Washburn previously served in the Obama-Biden Interior Department. She also served as State Director and Legislative Director for Senator Jeff Bingaman. In her current position, Libby advises President Biden on Native issues as the DPC works to drive the President’s domestic agenda in Congress and throughout the federal agencies to ensure that policy decisions and programs are consistent with the President’s stated goals. Paawee Rivera (Pueblo of Pojoaque), White House Office of Intergovernmental Affairs (OIA) – Mr. Rivera previously served as the Western Coalitions Director for the Biden-Harris campaign. Prior to this role, PaaWee served as Senator Elizabeth Warren’s Western Political Director. In 2018, he also served on Senator Warren’s campaign as her Colorado State Director and Special Advisor during the 2020 Presidential cycle. PaaWee serves as the primary liaison between the White House and all 574 federally recognized tribes. He will support the president’s commitment to strengthening tribal sovereignty and advancing the Nation-to-Nation relationship. Morgan Rodman (Navajo Nation/Osage Nation), Executive Director – White House Council on Native American Affairs (WHCNAA) – Mr. Rodman enters this role after previously serving as the Executive Director of WHCNAA under the Obama Administration. After the Trump Administration transition, Morgan served as the Acting Director of the Indian Affairs Office of Indian Economic Development. With Secretary Haaland as Chair, Morgan’s experience and previous leadership will help lead the Administration’s “all-of-government” approach to Native issues, prioritizing strengthening the Nation-to-Nation relationship with Tribal governments. Dr. Jill Jim (Navajo), COVID Advisory Board – Dr. Jim was recommended to the Biden-Harris COVID-19 Advisory Board by Navajo Nation President, Jonathan Nez, for her critical work as the Executive Director of the Navajo Nation Department of Health. Dr. Jim was appointed to the role of Executive Director in 2019. Under the leadership of the Board Chairs, former Food and Drug Administration commissioner Dr. David Kessler, former Surgeon General Dr. Vivek Murthy, and Yale University Dean Dr. Marcella Nunez-Smith, Jill will be a key voice in ensuring Indian Country’s needs for this board are heard. Department of the Interior Lawrence “Larry” Roberts (Oneida Nation), Chief of Staff to the Secretary of the Interior - Mr. Roberts previously served as Acting Assistant Secretary of Indian Affairs (AS-IA) and Principal Deputy Assistant Secretary of Indian Affairs during the Obama Administration. Most recently, Larry was a professor at Arizona State University’s Sandra Day O’Connor College of Law. Prior to his roles as Acting AS-IA and Principal Deputy AS- IA, Larry served as General Counsel of the National Indian Gaming Commission. Larry is the first Native Chief of Staff for the Department of Interior and his breadth of experience working in the Federal government for Indian Country will be pinnacle to Secretary Haaland’s team.
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Robert Anderson (Bois Forte Band), Solicitor – Mr. Anderson has taught American Indian law, public land, and water law at the University of Washington School of Law where he directed its Native American Law Center for twenty years. Since 2010, he has served as visiting professor at Harvard Law School. In the Clinton Administration, he served as the Associate Solicitor for Indian Affairs and Counselor to the Secretary. President Biden nominated him to serve as the Solicitor for the U.S. Department of the Interior. The Senate Energy & Natural Resources Committee approved his nomination by an 11-9 vote with Sen. Lisa Murkowski (R-AK) as the only Republican to vote in favor of his nomination. Mr. Anderson’s nomination awaits further consideration from the full U.S. Senate. Anna Marie Bledsoe Downs (Winnebago Tribe of Nebraska), Deputy Solicitor for Indian Affairs – Ms. Bledsoe Downs joins Interior after serving as the Executive Vice President of Community Impact and Engagement at Ho- Chunk, Inc. She previously served as Interim Director of the BIE in the Obama Administration. She was also Executive Director of the Indian Legal Program (ILP) at ASU. As Deputy Solicitor for Indian Affairs, she will spearhead the Department’s views on legal issues impacting Indian Country and make recommendations on which cases to elevate to the Justice Department. Natalie Landreth (Chickasaw Nation), Deputy Solicitor for Land Resources – Ms. Landreth is a former attorney for the Native American Rights Fund where she worked for 17 years, representing tribes and Native Americans in treaty rights, public lands, and administrative and environmental laws. As Deputy Solicitor for Land Resources, she will be helping the Biden administration to address major challenges that include racial equality and climate change. Bryan Newland (Bay Mills Indian Community), Assistant Secretary-Indian Affairs – Mr. Newland, while awaiting his confirmation process to progress in the Senate, is currently serving as the Principal Deputy Assistant Secretary of Indian Affairs at the U.S. Department of the Interior. He is a citizen of the Bay Mills Indian Community (Ojibwe), where he recently completed his tenure as Tribal President. Prior to that, Bryan served as Chief Judge of the Bay Mills Tribal Court. From 2009 to 2012, he served as a Counselor and Policy Advisor to the Assistant Secretary of the Interior – Indian Affairs. The Senate Committee on Indian Affairs held an oversight hearing on the nomination on June 9, 2021. The Committee has scheduled a vote on Mr. Newland’s nomination for July 14, 2021, which will occur after this report goes to print. U.S. Department of Agriculture Janie Hipp (Chickasaw Nation), USDA General Counsel – President Biden nominated Ms. Hipp to the USDA in March of this year, while she was serving as the CEO of the Native American Agriculture Fund. Before this role, Janie was the founding director of the Indigenous Food and Agriculture Initiative at the University of Arkansas. She served as Director of the Office of Tribal Relations in the Obama Administration. For more than 35 years prior to her federal service, Janie built her career as an agriculture and food lawyer and policy expert. Her work has focused on the complex intersection of Indian law and agriculture and food law. The Senate Agriculture Committee approved her nomination by unanimous voice vote on June 10, 2021. Her nomination now awaits consideration before the full U.S. Senate. Zach Ducheneaux (Cheyenne River Sioux), Administrator of the Farm Service Agency – Mr. Ducheneaux previously served as the Executive Director of the Intertribal Agriculture Council, the largest, longest-standing Native American agriculture organization in the United States. In this role, Zach will provide leadership and direction on agricultural policy, administering credit and loan programs, and managing conservation, commodity, disaster and farm marketing programs through a national network of offices. In addition to his duties as Administrator, Zach currently serves on the board of directors for Project H3LP!, a nonprofit founded by his family to benefit his local community by providing life lessons and therapy through horsemanship. Heather Dawn Thompson (Cheyenne River Sioux), Director Office of Tribal Relations (OTR) – Ms. Thompson has worked in Indian law and policy for two decades, most recently in private practice. She has also served as law clerk with the Attorney General’s Office for the Cheyenne River Sioux Tribe, as Counsel and Policy
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Advisor to the U.S. Senate’s Democratic Policy Committee, and as an Assistant U.S. Attorney for South Dakota’s Indian Country Section, where she prosecuted cases involving violence against women and children. USDA has restored the Office of Tribal Relations back to directly advising the Secretary, which will better ensure that maintain nation-to-nation relationships in recognition of tribal sovereignty and to ensure that meaningful tribal consultation is standard practice across the Department. Army Corps of Engineers Jaime Pinkham (Nez Perce), Principal Deputy Assistant Secretary of the Army for Civil Works (Appointed) – Mr. Pinkham previously served as the Executive Director of the Columbia River Inter-Tribal Fish Commission, and has two decades of experience advocating for tribal sovereignty, self- determination and treaty rights. He is chairman emeritus for the American Indian Science and Engineering Society and past president of the Intertribal Timber Council. As principal deputy assistant secretary, Pinkham helps guide the civil works program, which guides the agency’s water resource development on issues related to flood control, hydroelectric power, water supply, fish and wildlife habitat restoration, and related ecosystems management. Department of Transportation Arlando Teller (Navajo Nation), Deputy Assistant Secretary for Tribal Affairs – Prior to this appointment, Mr. Teller served as a Representative within the Arizona State Legislature. He brings an additional 9 years of experience with the Navajo Division of Transportation, serving as Deputy Division Director before departing. Mr. Teller’s goals within this role are to improve, reengage and improve the relationship building with tribes, prioritizing Tribes that have minimal or no connections with the DOT. Department of Energy Wahleah Johns (Navajo Nation), Senior Advisor for the Office of Indian Energy – Prior to the role at OIE, Ms. Johns co-founded Native Renewables, a nonprofit that builds renewable energy tribal capacity while addressing energy access. Her work with the Black Mesa Water Coalition and Navajo Green Economy Coalition has led to groundbreaking legislative victories for groundwater protection, green jobs, and environmental justice. She is responsible for upholding and advancing the Office of Indian Energy’s mission to maximize the development and deployment of energy solutions for the benefit of American Indians and Alaska Natives.
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The American Rescue Plan Delivers $31 Billion to Tribal Governments President Biden signed the American Rescue Plan (“Rescue Plan”) into law on March 11, 2021. The law is delivering more than $31.2 billion – by far historic levels of funding – to Indian Country to help address the disparate impacts of the COVID-19 pandemic. Included in these funding provisions are several set-asides for tribal governments. For more than two decades, the National Indian Gaming Association has advocated to end federal programs that force tribal governments to seek “pass-through” funding from the states, and instead establish set-asides that provide direct funding to Indian tribes. The set-asides included in the American Rescue Plan set historic precedent for all of Indian Country and strengthen tribal sovereignty as well as the respect for the governmental status of Indian tribes. Federal resources delivered to tribes through the American Rescue Plan seek to address the root causes for the disparate health and economic impacts of the pandemic on Native communities. The Rescue Plan includes a revised version of the Coronavirus Relief Fund – renamed the Fiscal Recovery Fund, a third round of the Paycheck Protection Program, and a tribal set-aside from the reauthorized Small Business Credit Initiative. The law also provides more than $6 billion to improve Indian health care systems - including vaccine distribution, telehealth and other health and mental health care-related needs; $1.1+ billion for Native education programs; more than $1 billion for tribal child care programs; more than $1 billion for Indian housing, rental assistance and assistance to homeowners; $900 million for BIA programs and services focused on child welfare, social services, and public safety; and $20 million to address the impacts on Native languages and the need for increased language preservation programs; among many other resources. The items listed below provide a more detailed description of major tribal provisions and set-asides included in the American Rescue Plan. Key Tribal Provisions in the American Rescue Plan $20 billion set-aside for Tribal governments in the Fiscal Recovery Fund. The largest program for Indian tribes is the Coronavirus Fiscal Recovery Funds (FRF)(formerly the CARES Act - Coronavirus Relief Fund (CRF)). The $20 billion set aside for Tribal governments represents 5.7 percent of the total amount of funding that will be distributed to all governments under the Fiscal Recovery Fund. The Fiscal Recovery Fund, like the CRF, allocates funding to tribal, state, and territorial governments. The FRF improves on the former provision by clarifying that funding will only be allocated to federally recognized tribal governments. The FRF definition of “Indian tribe” removes the confusing reference to the Indian Self-Determination Act, and instead references the Federally Recognized Tribal List Act. Importantly, the use of FRF funding is more flexible to better respect the local decision-making of governments to respond to the health and economic impacts of the pandemic. The Rescue Plan’s FRF appropriated $20 billion to Tribal governments. It directs the Treasury Department to allocate $1 billion equally among each of the eligible Tribal governments. The remaining $19 billion shall be allocated in a manner determined by the Secretary of the Treasury. The Treasury Department is distributing the $20 billion to Tribal governments in two rounds. The first round of funding, totaling $13.1 billion has been allocated based on tribal population data. The second round of funding will be based on tribal employment data. The deadline to confirm or amend tribal employment data for the second round was Friday, July 16, 2021. Based on this data, Treasury is calculating the allocations, and will announce the anticipated date for the second payment to Tribes in August. A related issue under review is how Tribal governments can use the FRF funds. The text of the American Rescue Plan makes clear that the use of FRF funds is more flexible than the CARES Act’s Coronavirus Relief Fund. The Treasury Department has identified an initial list of permissible uses, which can be found here: https://home.treasury.gov/policy-issues/coronavirus/assistance-for-state-local-and-tribal-governments/state-and- local-fiscal-recovery-fund/tribal-governments
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Treasury issued an interim final rule on the permissible use of FRF funds for tribal, state, local, and territorial governments on May 17, 2021. However, the Department accepted comments on the interim final rule through July 16, 2021. The Department is expected to issue the final rule on permissible uses of the FRF in August. Indian Housing Resources – Overcrowded homes with multiple generations living under one roof and the lack of housing in Indian Country was a driving factor that led to the disparate impacts of the COVID-19 pandemic in Native communities. Forty percent of on-reservation housing is considered substandard (compared to 6 percent outside of Indian Country) and nearly one-third of homes on reservations are overcrowded. Less than half of the homes on reservations are connected to public sewer systems, and 16 percent lack indoor plumbing. To help address the housing shortage in Native communities, the American Rescue Plan has delivered $450 million to Indian tribes through the Indian Housing Block Grant program and $280 million through the Indian Community Development Block Grants. Homeowner Assistance Fund Tribal Set-Aside – The American Rescue Plan also includes a $500 million set-aside (5 percent) for Indian tribes within Treasury’s Homeowners Assistance Fund program. The program will deliver the funding directly to Indian tribes, which will then distribute funding to individuals and families for qualified housing expenses, which include: mortgage payment assistance, costs related to mortgage reinstatement or forbearance, principal and interest rate reductions, utilities assistance, internet and broadband service, property taxes, homeowners insurance, and homeowner / association fees. Treasury is using the Indian Housing Block Grant formula to allocate these funds to Tribal governments. The Treasury Department released guidance to help governments apply for the Homeowner Assistance Fund (HAF), which can be found at this link: https://home.treasury.gov/system/files/136/HAF-Guidance.pdf. The guidance provides definitions for the HAF, lists qualified expenses for homeowners to use the funds, provides links to required forms and reporting requirements for Tribal governments - including a “notice of funds request form”, found at the link below, which must be completed, signed by an authorized official of the Tribal government or Tribal housing authority, and returned to Treasury by September 30, 2021 at https://home.treasury.gov/policy- issues/coronavirus/assistance-for-state-local-and-tribal-governments/homeowner-assistance-fund. Tribal governments approved to receive HAF payments must also enter into a financial assistance agreement with the Treasury Department. Once the agreement is completed, the Tribe will receive 10 percent of the amount allocated to initiate planning for the Tribe’s HAF community plan. The remaining 90 percent of the allocation will be delivered when a Tribe submits its formal plan to use HAF funding for its community. The Treasury Department held a consultation meeting with Tribal leaders to further discuss the HAF on July 13, 2021 to discuss implementation of the program and provide more details to the information listed above. Small Business Credit Initiative Set-Aside – The Rescue Plan includes a $500 million set-aside for tribal governments within the Small Business Credit Initiative. The program was authorized in the 2009 American Recovery and Reinvestment Act, but it excluded direct funding to Tribal governments. The Rescue Plan corrects that oversight and offers direct funding to tribes to deliver capital investments in Native businesses. Governments will use the SBCI funding to develop financial programs to extend loans, provide guaranteed loans, and access to capital for small businesses. Treasury is using the IHBG formula to allocate the $500 million to Tribal governments. Tribal governments interested in participating in SSBCI must submit a Notice of Intent (NOI) by August 16, 2021. Tribal governments may apply individually or jointly. Treasury encourages Tribes with limited experience in small business financing to consider joint applications and working with third parties that have proven experience with small business financing programs. SSBCI program applications are due December 11, 2021. Treasury will release guidance on applications in the near future.
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Improving the Tribal Fee 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 for only those Indian tribes that were “under federal jurisdiction” in 1934. The result has complicated the already cumbersome land to trust process. 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 (Interior) issued M-Opinion (M-37029) titled “the Meaning of ‘Under Federal Jurisdiction’ for Purposes of the IRA'' on March 12, 2014. While it does offer a path forward for the Department to continue to process land to trust applications, the relatively new process requires detailed historic research and legal analysis, added attorneys, historians, and can take years to complete. Without a legislative fix to the Carcieri decision, the tribal fee land to trust process will be subject to conflicting interpretations of the executive branch as evinced in the competing interpretations of the past Obama and Trump Administrations. From 2009-2017, the Obama Administration placed more than 560,000 acres of tribal fee lands into trust, utilizing the 2014 M-Opinion and other rules. From 2017-2021, the Trump Administration reversed course, approving less than 75,000 acres of tribal fee lands into trust. Former Interior Secretary Bernhardt also rescinded the 2014 M-Opinion and replaced it with guidance that most tribes view as more restrictive to the tribal fee land to trust process. Interior is now considering whether to improve upon the 2014 M-Opinion or begin the process to promulgate regulations to implement a more durable agency position regarding the IRA’s “under federal jurisdiction” requirement. 117 th Congress: Efforts to Achieve a Legislative Carcieri Fix The only way to fully restore Interior’s tribal fee land to trust process is to enact legislation to amend the IRA. Inter- tribal organizations throughout Indian Country remain united behind this goal. Companion bills have been introduced in the 117 th Congress to accomplish a clean Carcieri fix, which would 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. Senator Jon Tester (D-MT) introduced S. 1901 with original co-sponsor Sen. Jerry Moran (R-KS). The bill has 10 other co-sponsors. On July 2, 2021, Rep. Betty McCollum (D-MN) introduced the House version of the Carcieri fix, which is identical to the proposal included in the Biden Administration’s FY’22 Budget proposal. The House bill, H.R. 4352, is co-sponsored by House Native American Caucus Co-Chairs Rep. Tom Cole (R-OK) and Rep. Sharice Davids (D-KS), as well as Caucus Vice Chair Rep. Markwayne Mullin (R-OK). In the Senate, tribes and advocates are asking the Senate Committee on Indian Affairs to schedule a hearing on the S. 1901, which would be the first Senate hearing on this issue in more than 5 years. In the U.S. House of Representatives, given the strong bipartisan vote (323 yeas, 93 nays) on Rep. Cole’s Carcieri fix in 2019, Indian Country will work with the House Natural Resources Committee to immediately bring the bill to markup without a hearing. Finally, the House Appropriations Committee approved its version of the FY’22 Interior, Environment and Related Agencies funding bill, which includes the Carcieri fix proposal that was requested in the President’s Budget. Tribes are urging the full House of Representatives to retain this provision as that bill advances to the House floor in the coming weeks.
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Infrastructure Revitalization: Indian Country’s Unmet Needs President Biden campaigned on a sprawling infrastructure agenda, promising significant federal investments to meet the nation’s long-standing infrastructure needs, while also addressing climate change. After lengthy negotiations with Congress, the Administration has settled on a two-prong approach. The first track for infrastructure revitalization will focus on funding for “physical” infrastructure needs that will require a 60-vote threshold in the U.S. Senate. President Biden announced in late June that he had reached an agreement with a bipartisan group of 21 senators (11 Republicans and 10 Democrats) on a framework for a physical infrastructure package that totals $1.2 trillion and includes $580 billion in new funding. The second package will seek funding for a broader range of infrastructure, and include components of President Biden’s American Jobs Plan and American Families Plan, which includes an extended child care tax credit for lower income families, establishes universal pre-K education, and seeks to cut costs of higher education. This second phase of infrastructure legislation will likely advance through the budget reconciliation process, which requires a simple majority in both the House and Senate. The package, still under negotiation, will range from $2 to 6 trillion, pending offsets to the Tax Code and other methods to pay for the proposal. On July 9, 2021, Senate Majority Leader Schumer (D-NY) stated his intention is to advance both infrastructure packages through the U.S. Senate in the current legislative work period, before Congress departs for the usual August summer break. Indian Country Infrastructure. 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 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 health threat to Native communities, these longstanding infrastructure disparities have stalled economic development in Indian Country for generations. Tribal governments and Native organizations urge the Administration and Congress to follow the historic precedent set in the American Rescue Plan by including at least a 5 percent Tribal governments set aside from funding resources directed to all governments to mee the significant unmet infrastructure needs of Indian Country . Investing in Indian Country infrastructure will make our communities more resilient, spur 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 long needed reforms to the U.S. Tax Code. The Code provides broad tools to state and local governments to spur outside investment in infrastructure projects. These same provisions fail to provide direct funding to tribal governments, forcing tribes to seek pass through resources from state governments. Infrastructure revitalization represents 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 can be unlocked through targeted tax reform measures. 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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Removing Federal Barriers to Offering of Mobile Wagers on Indian Lands Act On Thursday, July 1, 2021, Rep. Lou Correa (D-CA) with original co-sponsor Rep. John Katko (R-NY) introduced, H.R. 4308, titled the “Removing Federal Barriers to Offering Mobile Wagers on Indian Lands Act”. The bill has been referred to the House Natural Resources Committee’s Subcommittee on Indigenous Peoples of the United States. Section 3 of the bill seeks to clarify for purposes of online wagering pursuant to the Indian Gaming Regulatory Act, “a wager shall be deemed to be made at the physical location of the server or other computer equipment used to accept the wager.” The bill defines the term “interactive wagering platform” to mean “a person or entity to the extent such person or entity offers lawful wagering over the internet, including through an internet website or mobile application”. The term “wager” is defined as “the staking or risking by any person of something of value upon the outcome of an event, including the outcome of any portion or aspect thereof, upon an agreement or understanding that the person or another person shall receive something of value in the event of a certain outcome.” Finally, the bill provides that wagers will only be considered to exclusively occur on Indian lands if the person placing the wager and server or other computer equipment are located in the same state, and only if the Tribe and the State have entered into a compact pursuant to IGRA. In his introductory remarks, Rep. Correa acknowledged the benefits of Indian gaming to Tribal governments and their communities, job creation, and investments in regional rural economies. He noted that H.R. 4308 seeks to “clarify the federal Indian Gaming Regulatory Act and make clear what the congressional drafters would have done in 1988 had the internet been around at that time. This bill would clarify that for purposes of tribal government gaming, the location of the wager occurs at the location of the server, unless a state and Indian tribe otherwise agree.” Correa added, “This bill does not authorize any type of internet gaming; that is within the authority of each state to do. All this bill does is clarifies the location of where the wager takes place for purposes of tribal government gaming. It clarifies that internet gaming will be conducted by tribal governments under the same framework that they currently conduct gaming in their physical casinos.” In December of 2019, Rep. Anthony Bridisi (D-NY) introduced similar legislation, H.R. 5502, in the 116 th Congress that focused solely on mobile sports wagers. Due in large part to the COVID-19 pandemic, the bill stalled in the House and did not receive a hearing. Sports and mobile wagering have rapidly expanded in the United States since the U.S. Supreme Court’s decision in Murphy v. NCAA on May 14, 2018. That decision struck down the federal Professional and Amateur Sports Prohibition Act (PASPA) as unconstitutional. In the three years since Murphy, twenty-one (21) states and the District of Columbia have legalized sports betting within their jurisdictions, with 16 now offering some form of online sports wagering. Nine other states have passed laws to legalize sports betting that are pending implementation. At the same time, dozens of Native Nations have also added sports wagering offerings to Indian gaming operations. Some of these operations accept online wagers outside of Indian lands pursuant to state law pursuant to IGRA- approved compacts. As noted above, H.R. 4308 was introduced on July 1, 2021. The National Indian Gaming Association and our Member Tribes are reviewing the proposal and have not yet taken a position on the bill. Our Association has standing resolutions on federal proposals to amend the Indian Gaming Regulatory Act, sports betting, and internet gaming. We will work within our organization in coordination with our Member Tribes, as we develop a formal position on this important proposal.
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VIA Electronic Submission May xx, 2021 Internal Revenue Service Attn: CC:PA:LPD:PR (Notice 2021-28) Room 5203 P.O. Box 7604 Ben Franklin Station Washington, D.C. 20044 RE: Notice 2021-28; Recommendations for 2021-2022 Priority Guidance Plan Dear Sir or Madam:
On behalf of its members, the American Gaming Association (AGA) and the National Indian Gaming Association (NIGA) are pleased to submit the following recommendation for items included in the 2021-2022 Priority Guidance Plan. We appreciate the opportunity to provide input to Internal Revenue Service (IRS) and Treasury on a matter of continued importance to the gaming industry, and urge you to consider the following as part of the process: • Final guidance on corrective actions available to the Treasury Department and its regulatory authority under section 7805 of the Internal Revenue Code to update the dollar threshold for tax information reporting for slot machine jackpots under current Treasury Regulation § 1.6041-10. Background: The current threshold for tax information reporting for slot machine jackpots was set at $1,200 in 1977 through regulation and has not been updated since then. A $1,200 jackpot in 1977 would be equivalent to more than $5,000 today if adjusted for inflation. As the value of a $1,200 jackpot has decreased, the number of jackpots hitting that threshold and requiring reporting has increased. The current, outdated threshold imposes significant compliance burdens on both the IRS and the gaming industry – an economic driver in communities across the country that has been significantly impacted during the pandemic due to mandatory closures to protect public health and safety. Having to take a slot machine temporarily offline to issue a tax reporting form removes a limited asset from production. Modernizing the threshold would promote operational efficiency for gaming operations and customers and enable the IRS to focus its limited enforcement resources on those taxpayers who are most likely to have net slot winnings at the end of the taxable year. Members of Congress have recognized the negaimpact of a static and antiquated reporting threshold, which is why they have previously written to Treasury urging the Department to provide regulatory relief. Most recently, the Consolidated Appropriations Act of 2021, signed into law (Public Law No: 116-260) on December 27, 2020, directed Treasury to report to
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