Are Tribal Employers Subject to the Employer Mandate of the Affordable Care Act? We May Soon Have an Answer.

By: Matthew Jandrisavitz

Through The Patient Protection and Affordable Care Act, also known as Obamacare, Congress mandates that individuals must have health care unless they meet one of the few exemptions.  One of the exemptions is for members of Native American tribes receiving health care through Indian Health Services. This is just one of the numerous provisions within the Affordable Care Act that treat Native Americans differently as a result of the controversial history between the United States and Native Americans.

Another provision of the Affordable Care Act mandates that “large” employers, those that have 50 or more employees, must provide “minimum essential coverage” to their employees. If employers do not meet these requirements, they are assessed a fine known as an “Employer Shared Responsibility Payment.” It is common for a tribe to serve as the primary employer of the Indian community. Forcing Native American employers to comply with the mandate could cost a tribe such a substantial amount of money that it would damage their well-being. While the Affordable Care Act specifically addresses Native Americans in its provision for the individual mandate, it does not address how the employer provision relates to Native Americans.

In her comment about this issue, Rachel Sibila, analyzed the possibility of different outcomes based on which statutory interpretation the courts would use when deciding whether tribal employers must comply with the mandate. The canons of construction would resolve the statute in favor of the Native American employers because the statute does not address whether the employer mandate applies to them. The Coeur d’Alene rule from the Ninth Circuit, which has been receiving nationwide support for how to deal with a federal statute that is absent language in respect to Native Americans, may resolve the issue differently. The Coeur D’Alene rule states, “legislation absent express language manifesting a clear intent otherwise, will not apply to Native American tribes if (1) the law touches ‘exclusive rights of self-governance in purely intramural matters, (2) the application of the law to the tribe would abrogate rights guaranteed by Indian treaties or (3) there is proof by legislative history or some other means that Congress intended the law not to apply to Indians on their reservations.”

As to the first exception, Sibila discusses that whether the Native American employer employs non-Native Americans, or if he is engaged in commerce with non-Native Americans can decide whether the employer must comply. If it is considered a tribal matter, then the employer would be exempt from the employer mandate.  When addressing the second exception she notes numerous treaties have been enacted in recent history that create an obligation to guarantee Native Americans health services. Requiring Native American employers who are dealing in purely intramural matters to be bound by the employer mandate would abrogate these treaties. Therefore, businesses that fall within purely intramural tribal matters, should not be forced to comply with the employer mandate. In regards to the third exception, Congress does not address Native Americans with regards to the employer mandate and therefore their intent cannot be deciphered

In her comment, Sibila argues that different outcomes could be had for an employer based on whether the courts apply the canons of construction or the Coeur D’Alene rule to resolve the lack of express language in the statute.  She urges Congress to create explicit language, as to whether the exemption applies to Native Americans, as Congress has done with the individual mandate.

Shortly after the article was released, the courts and Congress were forced to address the issue. In the United States District Court for the District of Wyoming, a decision was recently handed down, on July 2, 2015, that ruled Native American employers are not exempt from the employer mandate. The court found that Congress expressly intended, in the relevant statute, that the employer mandate applied to all large employers, including Indian tribes. The court held that the statute is clear and that if Congress intended to exclude Native Americans from the employer mandate, they would have done so, just as they have done with the individual mandate.

On July 15th, 2015, just seven days after the Wyoming District Court’s decision, a bill was introduced to exempt Native American tribes and tribal employers from Obamacare’s employer mandate. The Act is known as the “Tribal Employment and Jobs Protection Act.”  The proposed legislation would exempt, as defined by statute, (1) any Indian tribal government, (2) a subdivision of an Indian tribal government, (3) an agency or instrumentality of an Indian tribal government, or (4) any tribal organization. It will be interesting to see the support that the bill gets within Congress after the recent district court decision. Most importantly, it seems as if Congress will finally speak out on the subject and put into express language whether the mandate applies to Native American employers.

Sources:

Rachel Sibila, Play or Pay: Interpreting the Employer Mandate of the Patient Protection and Affordable Care Act, 39 Am. Indian L. Rev. 235 (2014).

Timothy M. Todd, Court Holds That Tribe is Subject to ACA Large Employer Mandate, Forbes, (Jul. 9, 2015), http://www.forbes.com/sites/timtodd/2015/07/09/court-holds-tribe-subject-to-aca-large-employer-mandate/.

Tribal Employment and Jobs Protection Act, S. 1771, 114th Cong. (2015).

Native Americans and the Affordable Care Act

By:  Ryan Borger

Due to treaties between Indian tribes and the United States, tribal Indians are guaranteed free health care at any Indian Health Service (“IHS”) or tribal-run facility.  Despite this, in the United States in 2011, nearly 1.2 million (approximately 25%) American Indians and Alaska Natives did not have health insurance.  That’s roughly 10% higher than the total number of Americans countrywide that were uninsured at that time.  This was attributable, at least in part, to some glaring deficiencies in the IHS system.  First, “urban Indians,” which are those who do not live on tribal lands, typically do not have access to IHS facilities.  According to the 2010 census, nearly 78% of all Native Americans were urban Indians.  Second, insufficient funding results in Native Americans who do have access to IHS facilities facing difficulties in getting the care they need.  Their answer may be the Affordable Care Act.

If Tribal Indians buy insurance through the ACA’s marketplace exchange, their access to health care is much more obtainable.  It would make no difference whether they live on tribal lands or whether they are urban Indians; each would have equal access to care.  Moreover, if they sign up, Native Americans falling below a certain income level would have their health care costs covered for them, regardless of the facility they choose to attend.  Those above the income level would have their costs covered for them if they attend an IHS or tribal-run facility.  This generates more money for these facilities and allows them to provide care to those who remain uninsured.

The ACA could possibly be the answer to the Native American health care problem the IHS was once thought to be.  In the years since the ACA’s inception, the IHS has been providing training and education to IHS and tribal-run facilities on the ACA.  As this continues in the years to come, the IHS expects the number of uninsured Native Americans to drop significantly from where it was just four years ago.  As the goal of the IHS is “to raise [Native Americans and Alaska Natives’] health status to the highest possible level,” perhaps the ACA is just the way to accomplish it.

Source:  Taylor Kubota, How the Affordable Care Act Applies to Native Americans, HealthbizDecoded.com (November 5, 2013), http:// http://www.healthbizdecoded.com/2013/11/how-the-affordable-care-act-applies-to-native-americans/

Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes: A Counter Argument

By: Nicholas Fiaschetti

In a recent article published in the American Indian Law Review, author Alex Tallchief Skibine makes an argument for why Native American Tribes should be treated as a “third sphere of sovereignty” within the United States Constitution. Through historical analysis and interpretations of Supreme Court decisions, it is argued that Native American Tribes have historically been treated as separate sovereigns. Given the language of the Commerce Clause in the Constitution, the argument further posits that the Supreme Court has misinterpreted constitutional authority in its ability to regulate Native American affairs. As a result, the article suggests that Native Americans may be more prone to abuse at the whims of the courts and Congress. The suggested solution then, is to treat Native American Tribes a quasi-autonomous separate sovereign, yet with a surety of constitutional protections. I respectfully disagree.

The idea of holding Native American Tribes as true sovereigns, while at the same time holding that they be backed by a constitutional method of analysis to ensure proper congressional control over their affairs, seems contradictory at best. It is suggested that because Native American Tribal issues are not held to a constitutional level of scrutiny, Native Americans are at greater risk of abuse from both the courts and Congress. Essentially, there is too much power with no check. However, focusing on the contradictory nature of this idea, what if the Supreme Court did decide to treat Native American tribes in the suggested manner? Although the author did concede many severe consequences, I can think of more.

There are currently around 566 recognized Native American Tribes residing within the United States. If each were to be treated as an independent sovereign subject to a constitutional surety, the tribes themselves may actually be worse off. If Native American Tribes were to be given the aforementioned level of sovereignty and scrutiny in their affairs, Congress would have to pass some fairly sweeping legislation to allow the general U.S. public (Non-Native American or Tribe affiliated individuals) to even conduct business with the tribes. By the strictest adherence to the constitution, only Congress may regulate trade with the “Indian Tribes.” Although there are great arguments to be made about the meaning of the word “regulate,” as it appears in the clause, ultimately I am hard pressed to believe that Congress would simply give up its power over the tribes to the general public. This may have dire impacts on trade given that essentially no private entity could enter into economic business with the tribes’ without a Congressional mandate.

The bigger danger may also come in the form of basic legal enforcement issues. Where would disputes be settled? In which court system? Given present adherence to “consent to govern” philosophies, I find it hard to believe as a public policy matter that the Supreme Court or Congress would allow a U.S. citizens to be legally bound by a tribal court within a U.S. state that is still technically subject to the Bill of Rights. Furthermore, if we are going to treat reservations as truly separate independent states, would this constitute international commerce? If it did, this would carry with it enormous tax consequences that would need dealt with by Congressional action. Not to mention the inevitable “border control issues” that would arise.

Back to my original point of contention though, it simply seems fundamentally illogical to call Native American Tribes sovereign entities, but have them be subject to our Constitution. While there are serious administrative and institutional competency issues at play here, simply stated, trying to grant Native American Tribes quasi-autonomous sovereignty with a legal surety backed by the U.S. Constitution will open the door to more problems than it will solve, and may ultimately stand to economically injure Native American Tribes more than helping. While the fear of abuse is understandable, opening up Native American Tribes to fall under the Constitution would only further weaken their claims of sovereignty, and may have dire economic consequences on the tribes that recent gaming laws may not be enough to fix. Although I freely concede that this is a serious and pervasive issue that deserves genuine attention and real congressional recognition and action, I cannot support a theory that would hold Native Americans as separate sovereigns backed by the U.S. Constitution. It is fundamentally opposed to the truest ideas of legitimate state sovereignty, and would only serve to further segregate this class of people from our country when we should be moving towards greater inclusion of all races and peoples to our society and economy at large.

Sources:

Alex Tallchief Skibine, Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes, 39 Am. Indian L. Rev. 77 (2015).

Tribal Directory, US Dept. of the Interior Indian Affairs, http://www.bia.gov/WhoWeAre/BIA/OIS/TribalGovernmentServices/TribalDirectory/ (last updated Oct. 14, 2015, 3:48 PM).

U.S. Const. art. I, § 8, cl. 3.

The Tribal Law and Order Act: Will it Help?

By: Dwight Quichua

The purpose of the Tribal Law and Order Act (“TLOA”) was to combat lawlessness found in Native American lands.  Although the TLOA is considered to be a helping hand from the United States (U.S.) Federal Government, it is suggested by David Patton in his article Tribal Law and Order Act of 2010: Breathing Life Into the Miner’s Canary that for tribal sovereignty to really work, the real solution is for all tribes to work together in addressing the issues of crime and crime prevention.

Diving into a brief history of tribal law, the Indian Reorganization Act of 1934 vested authority to tribes to establish their own constitutions.  In 1953, a change in tide resulted in Public Law 280 (P.L. 280) passed criminal jurisdiction in Indian Country to the states (Congress felt the states were in the best position to improve conditions and prevent crime in Indian Country), while taking away public funding by the federal government for law enforcement and judicial services.  The Indian Civil Rights Act of 1968 shifted the tide back, allowing states to give P.L. 280 jurisdiction back to the federal government along with forcing tribal governments to impose some civil rights, similar to the Bill of Rights, to its people.

TLOA, signed by President Obama, was the federal government’s attempt to address law enforcement problems within Indian Country.  TLOA’s provisions requires more consultation with tribal communities regarding public safety and justice, which would make prosecutors more accountable, allow U.S. Attorneys to be used in criminal prosecutions in federal court, and encourages federal courts to hold trials in Indian Country.  TLOA increases recruitment and retention efforts for tribal police by allowing officers to receive training where federal law enforcement training standards are met, increase tribal officers’ authority to arrest while on the reservation, and allow tribal officers more access to the National Criminal Information Database.  TLOA also increases tribal court sentencing authority, set a higher maximum total sentence power.  Further, the TLOA requires indigent defendants to be given competent representation (i.e., licensed attorney) and competent judges, who are sufficiently trained in criminal proceedings.  Additionally, the TLOA develops tribal juvenile codes and develops detention and treatment centers for at-risk youth, while providing grants to tribes that respond to juvenile delinquency.  Finally, the TLOA strives to address violence against women by allowing police to take proactive steps when an abuser or violent offender enters or returns to the community.

The vision of Tribal law, through the eye of one tribe (the White Earth Nation in Minnesota) is a tribal system whose power is boosted by the TLOA and in which the system deals with the offender in its entirety (i.e., arrest, rehabilitation, re-entry into society).  Besides TLOA, although a tribe may seek assistance from the federal government, it is still imperative that the tribes themselves take up the initiative to improve conditions in their lands.

With the enactment of the TLOA, it appears reduction of crimes is heading towards the right direction.  Yet, it may be too soon to tell, after only five years, what kind of legacy TLOA will leave behind.  It is obvious that more work is to be done through legislation and more cooperation between the sovereign Native American tribes and the U.S. federal government in order to co-exist and to ensure continuing amicable relationship between the parties.

Source:  David Patton, Article: Tribal Law and Order Act of 2010: Breathing Life Into the Miner’s Canary, 47 Gonz. L. Rev. 767 (2012).

Accessibility of Tribal Law

By: Shannon Pascal

The availability of Indian tribal law is an issue which continues to affect the sovereignty, long-term economic development, and social acceptance of Indian tribes.  Indian tribes are one of the three sovereign entities within the United States, but unlike the other two sovereigns–state and federal governments–Indian tribes are not required to publish their law.  In fact, for the majority of the 566 federally-recognized Indian tribes, no published law is available and no universal reporting system exists for tribes that choose to publish their law.  Thus, tribal law is largely unavailable to federal and state courts, non-Indians living within or visiting Indian country, and outsiders wishing to do business with tribes.

The consequences of tribal law’s general lack of availability are far-reaching.  Without access to tribal law, courts which might otherwise find tribal law persuasive are forced to disregard it.  A non-Indian who is subject to tribal law may find himself unable to comply with tribal law if it is not widely known or available.  Businesses may be reluctant to enter into contracts with tribes, thereby retarding economic development, if they are unable to access tribal law.  Tribes may be barred from trying criminal cases under the Tribal Law and Order Act of 2010 and the Violence Against Women Reauthorization Act of 2013 if their criminal laws and procedures are not publicly available, weakening their overall sovereignty.  Finally, misunderstandings can occur when the law is not made available, leading outsiders to believe that the tribal courts are motivated by unfair racial preferences.  Making tribal law more widely available would address many of these issues.

Unfortunately, there are several barriers to making tribal laws more widely available.  Certain tribes, for instance, fear that publishing their laws would lead to criticism, threaten the sacred nature of their culture, and embarrass those who have been the subject of legal action in the past.  More prevalent, however, is the issue of cost.  Tribal legal systems are poorly funded and many tribes simply cannot bear the costs of organizing, publishing and maintaining their laws.

As the third sovereign, Indian tribes have the extraordinary ability to write and enforce laws reflecting their own values and culture, but the effectiveness of such law is undermined by its inaccessibility.  Overcoming the barriers to the publication of tribal law will require both a cultural shift away from secrecy within certain tribes, as well as greater funding for tribal legal systems.  Over time, however, increased openness and accessibility should lead to greater tribal control and economic opportunity in Indian country.

Source:  Bonnie Shucha, “Whatever Tribal Precedent There May Be”: The (Un)availability of Tribal Law, 106 Law Libr. J. 199 (2014).

Tax-Exempt Tribe Imposes First Junk Food Tax

By: Margaret Nollau

The Navajo Nation is a Native American tribe, which encompasses a geographical area approximately the size of the state of West Virginia. Its borders cross Arizona, New Mexico and Utah. Like all other Native American tribes, the Navajo Nation is exempt from taxation by the United States Government. It is therefore ironic that it was this tax-exempt group who became the first jurisdiction in the U.S. to successfully win the battle to impose a junk food tax.

The Navajo Nation President, Ben Shelly, vetoed the legislation to impose the junk food tax three times due to concerns of how the tax would be regulated. There were worries that this tax may negatively impact small business owners and consumers. The tax gained favor among tribe members, however, and as of March 2015, junk food such as chips, soda, desserts, fried foods, and other products containing “minimal-to-no-nutritional value” sold on Navajo reservations will be slapped with a 2% sales tax. It is estimated that this new ‘sin tax’ will generate $1 million a year, which will be used for promoting greenhouses, cooking classes, community gardens, food processing and storage facilities, and farmer’s markets among other health promotions.

This new tax on junk food is partially in response to the many health concerns Native Americans face. The Indian Health Service reports that of the Navajo Nation’s 300,000 members, nearly 25,000 of them suffer from type-2 diabetes. Another 75,000 are classified as pre-diabetic. Unsurprisingly, hypertension and cardiovascular are among the health concerns facing Native Americans.

The Navajo’s tax was not the first of its kind. Mexico had previously implemented taxes on products with high fat and sugar content. As previously stated, this junk food tax is the first of its kind in the United States and only time will tell how it fares.

Source:  Robert W. Wood, Native American Tribe—With Tax Exempt Casinos—Has Nation’s First Junk Food Tax, Forbes, (Mar. 27, 2015), http://www.forbes.com/sites/robertwood/2015/03/27/native-american-tribe-with-tax-exempt-casinos-has-nations-first-junk-food-tax/.

The Cost of Entertainment: Taxing Performers in Indian Country

By: Nick Marinelli

As sovereign governments, Indian tribes have the power to levy taxes. In the same vein, states also possess the power to levy taxes on income earned within their jurisdiction. If both powers were to levy taxes on non-Indians earning income on an Indian reservation within a state’s jurisdiction, the resulting double-taxation would possibly deter future income generated in these locations. While not necessarily illegal, double taxation is a frowned-upon social policy that many entities prefer to avoid for fear of deterring future revenue streams. Athletes and entertainers, for example, are taxed both in the state in which they reside as well as the states in which they earn income. To offset this double taxation, the states in which they reside will provide tax credits in the amount paid to the other states. Under this concept, it is possible, however, to allow both powers to levy taxes and still avoid controversial policy decisions.

Historically, Indian tribes have been recognized as retaining the power to levy taxes on non-Indians earning income on their reservations. This taxation power has allowed the Indian tribes to generate revenue for the cost of providing governmental services to their people, just as the states do. While Indian sovereignty is well established, jurisprudence concerning Indian taxation laws is still in flux. The Supreme Court in Williams v. Lee established a balancing test when taxes by either entity were challenged: the State could protect its interests to the point where tribal governments would be affected in any way. This balancing test allows for both entities to protect their interests through taxation and generating revenue without adversely affecting the other in a significant way.

One jurisdiction, Connecticut, is home to the Mohegan Tribe that owns and operates the Mohegan Sun Arena in Uncasville, CT. The arena is located both on the Mohegan reservation and within the jurisdiction of Connecticut. The arena is home to both professional sports as well as entertainers from around the country. Under Connecticut tax law, performers and athletes who earn income in their state are subject to a five percent tax rate. The Mohegan tribe, while retaining the power to levy taxes on these performers, does not impose such a tax. In an effort to aid their government and economy, the Mohegan tribe would be able to levy a tax on the performers at a rate equal to or lesser than surrounding state tax rates, a commonly-held policy by many Indian tribes. Concurrently, the state of Connecticut could still impose their five percent tax rate but give the performers a tax credit in the amount that was paid to the Mohegan tribal government. While double taxation still occurs, this policy would effectuate the Williams balancing test to the extent that both entities could generate revenue without either’s interest adversely affecting the other.

All in all, the revenue generated on an Indian reservation that is within a state’s jurisdiction should be available to both entities to tax accordingly because it would not follow for one sovereignty to reap the benefits of taxes levied when both entities had a hand in the revenue’s generation.

 

Source:  Drew K. Barber, Note: The Power of Indian Tribes to Tax the Income of Professional Athletes and Entertainers who Perform in Indian Country, 41 Conn. L. Rev. 1785 (2009).