Forecasting the 2016 legislative agenda requires the use of something like a political Rorschach Test. Some people look at 2016 and see it as more-of-the-same—the second year of the 114th Congress. To others, 2016 looks the final, lame duck year of the Obama Administration. And to others it is a high-stakes election year with the control of the next Congress and White House up for grabs.
We think 2016 will prove to be all of these and much more.
Conventional wisdom suggests that this November’s elections will stymie most legislation until at least November, and perhaps until 2017.
Neither of us share that conventional wisdom because we think in many ways, 2016 is a Year of Opportunity for Indian Country.
Senate Majority Leader Mitch McConnell (R-KY) has said one of his main goals for 2016 is to take up and pass each of the 12 separate appropriations bills under “regular order.” That does look very possible because the budget caps have already been set for the year. If the House and Senate are able to muster the discipline to do this, Indian Country stands to gain major funding victories. Thanks to friends on both sides of the aisle in both chambers, funding for tribal programs overseen by the Bureau of Indian Affairs and the Indian Health Service have inched up over the last several years. And with tribal support, that can happen again in 2016.
After vigorous efforts by Indian tribes and tribal organizations, significant progress was made last year on major initiatives like the Tribal Labor Sovereignty Act (TLSA), amendments to the Tribal Self-Governance Act, reauthorization of the Native American Housing Assistance and Self-Determination Act (NAHASDA), Indian energy resource development legislation, and others.
With able support from a broad coalition of tribes and their partners, including the U.S. Chamber of Commerce and its Native American Enterprise Initiative, the TLSA (H.R. 511) passed the House with an overwhelming bipartisan vote on November 17, 2015, and is pending approval in the Senate. The Senate version (S. 248) was favorably reported by the Committee on Indian Affairs and has been on the Senate calendar since September. For a legislative fix that some thought for years was deader than a door nail, these developments are astonishing indeed, and would treat tribal government employers the same as local, state and federal government employers under the 1935 National Labor Relations Act.
NAHASDA reauthorization bills (H.R. 360 and S. 710) have each passed their respective chambers and are pending action in the other. These bills contain important reforms to statutes and regulations that will strengthen the ability of tribes to design and implement federal housing assistance for their low income households.
Recognizing that energy development on Indian lands is one of the largest governmental revenue generators in Indian country, the committees of jurisdiction have returned their focus to relaxing federal statutes governing leasing, appraisals, and related permitting in order to facilitate energy development by tribes. The House version of this initiative, H.R. 538, passed that chamber on October 8, 2015 and is pending in the Senate. A similar Senate bill, S. 209, passed that chamber on December 10, 2015 and is pending in the House. Just last week, S. 209 was added to a larger energy measure, the Energy Modernization Act of 2016 (S. 2012), thanks to Committee Chairman John Barrasso (R-WY) and Vice Chairman Jon Tester (D-MT).
With the help of some belated prodding from the Obama Administration, the Senate finally passed the Tribal Self-Governance amendments (S. 286) long-sought by tribal leaders. These reforms would facilitate the cost-effective negotiation and administration of funding agreements with the Interior Department. The House passed a similar bill in 2010. S. 286 is now pending in the House.
Each of these big steps forward last year open up a promising 2016. Thanks to Representatives like Tom Cole (R-OK) and Betty McCollum (D-MN), Senators like Barrasso and Tester, and many other bipartisan “odd couples”, the friends and allies of Indian Country can be expected to deliver a productive 2016 legislative agenda for Indian tribes.
After the 2016 elections, all bets are off. If as we expect the issue of the national debt reasserts its choke hold on the appropriation process next year, the modest increases in “discretionary” spending for essential tribal programs and services will be in jeopardy. With long-term debt now over $18 trillion, and the Congressional Budget Office reporting that it will grow to over $27 trillion over the next decade, Indian Country faces calamity after the November elections no matter who is in charge.
Our only (legislative) hope for the future beyond 2016 may be to push to transform tribal funding into mandatory spending accounts similar to Medicare, Medicaid and Social Security. Such a strategy, coupled with really meaningful tax reform that actually brings new life to the private sector in Indian Country by federally protecting the territorial sovereignty of tribal governments to the exclusion of state and local government taxation, holds the key to future economic growth and well-being in tribal communities. It may not be fashionable or politically correct to be optimistic these days, but as long-time participants in these matters, we are very hopeful good things will happen this year for Indian Country.
Paul Moorehead is partner at Powers Pyles Sutter & Verville and Philip Baker-Shenk is a partner at Holland & Knight. Both previously were senior staff on the Senate Committee on Indian Affairs.