Native victims on Indian lands. The Court reasoned that under its “precedents, federal law may preempt state jurisdiction in certain circumstances. But otherwise, as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.” (Citing the Tenth Amendment to the U.S. Constitution for this statement). The long-standing test for state authority in Indian country is that a state only has power to exercise authority on Indian lands pursuant an express act of Congress or consent of the Tribe. The Castro-Huerta Court turns this presumption on its head, imposing a new test: “unless [affirmatively] preempted [by an Act of Congress], States may exercise jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.” Indian Country will work through the Senate Committee on Indian Affairs, the House Natural Resources Committee and with the Biden Administration to blunt the impacts of this decision on tribal sovereignty, including potential down the road impacts on Tribal Government taxing authority, civil and regulatory jurisdiction over non-Indians, and related impacts on Tribal government economies. ICWA Protection. In November of 2022, the U.S. Supreme Court heard oral arguments in Brackeen v. Haaland where several states contend that ICWA’s placement preferences violates the Constitution’s equal protection clause and unlawfully commandeers state governments. The Court’s decision in this case is expected as early as February of 2023 but could be delayed until the end of the Court’s 2022-23 term. Tribes nationwide are laying groundwork with congressional leaders and the Biden Administration to address any potential adverse impacts from this case on Indian child placement decision-making and possible broader impacts on tribal sovereignty and federal laws that acknowledge the governmental status of Indian tribes. Tribal Tax Provisions. Indian Country will continue to press Congress to enact key reforms to the U.S. Tax Code to respect the governmental status of Indian Tribes for purposes of issuing tax exempt bonds and acknowledge direct tribal government access to the Low-Income Housing and New Markets tax credit programs, respect tribal court rulings for purpose of the federal child adoption tax credit, provide parity to the tax and pension treatment of tribal police officers and other key tribal government officials, among other longstanding needed reforms. Indian Health Service Advanced Appropriations. As will be detailed below, Indian Country achieved a historic victory in securing advance appropriations for Indian health care services and programs as part of the FY’23 Omnibus Appropriations Act. However, this achievement fell short of permanent advance appropriations funding. As a result, while funding is secure to prevent impacts from delayed funding or a government shutdown for FY’24, tribes nationwide will work to retain at least one-year advance appropriations in the next spending package. Work with the Biden Administration. As noted above, legislative activity will be difficult in the divided Congress. Indian Country will lean into work with the Biden Administration and the various executive agencies to secure policy achievements, including work to build on the Administration’s initiatives to restore tribal government homelands, protect sacred places on federal lands, expand on tribal government co-management and use of traditional indigenous knowledge in managing federal lands, and new initiatives to expand economic opportunities throughout Indian Country.
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