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80–928—PDF 2012

S. HRG. 112–772 

TAX REFORM: WHAT IT COULD MEAN FOR 

TRIBES AND TERRITORIES 

HEARING 

BEFORE THE

COMMITTEE ON FINANCE 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

MAY 15, 2012 

( 

Printed for the use of the Committee on Finance 

COMMITTEE ON FINANCE 

MAX BAUCUS, Montana, Chairman 

JOHN D. ROCKEFELLER IV, West Virginia 

KENT CONRAD, North Dakota 

JEFF BINGAMAN, New Mexico 

JOHN F. KERRY, Massachusetts 

RON WYDEN, Oregon 

CHARLES E. SCHUMER, New York 

DEBBIE STABENOW, Michigan 

MARIA CANTWELL, Washington 

BILL NELSON, Florida 

ROBERT MENENDEZ, New Jersey 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

ORRIN G. HATCH, Utah 

CHUCK GRASSLEY, Iowa 

OLYMPIA J. SNOWE, Maine 

JON KYL, Arizona 

MIKE CRAPO, Idaho 

PAT ROBERTS, Kansas 

MICHAEL B. ENZI, Wyoming 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

JOHN THUNE, South Dakota 

RICHARD BURR, North Carolina 

RUSSELL SULLIVAN, Staff Director 

CHRIS CAMPBELL, Republican Staff Director 

(II) 

C O N T E N T S 

OPENING STATEMENTS 

Page 

Baucus, Hon. Max, a U.S. Senator from Montana, chairman, Committee 

on Finance ............................................................................................................ 1 

Hatch, Hon. Orrin G., a U.S. Senator from Utah ................................................. 3 

WITNESSES 

Ingram, Sarah Hall, Commissioner, Tax Exempt and Government Entities, 

Internal Revenue Service, Washington, DC ...................................................... 4 

Porter, Hon. Robert Odawi, president, Seneca Nation of Indians, Salamanca, 

NY ......................................................................................................................... 6 

Robertson, Dr. Lindsay G., professor of law, University of Oklahoma College 

of Law, Norman, OK ............................................................................................ 8 

Maguire, Dr. Steven, Specialist in Public Finance, Congressional Research 

Service, Washington, DC ..................................................................................... 10 

ALPHABETICAL LISTING AND APPENDIX MATERIAL 

Baucus, Hon. Max: 

Opening statement ........................................................................................... 1 

Prepared statement .......................................................................................... 23 

Begich, Hon. Mark: 

Prepared statement .......................................................................................... 25 

Hatch, Hon. Orrin G.: 

Opening statement ........................................................................................... 3 

Prepared statement .......................................................................................... 27 

Ingram, Sarah Hall: 

Testimony .......................................................................................................... 4 

Prepared statement .......................................................................................... 29 

Maguire, Dr. Steven: 

Testimony .......................................................................................................... 10 

Prepared statement .......................................................................................... 35 

Porter, Hon. Robert Odawi: 

Testimony .......................................................................................................... 6 

Prepared statement .......................................................................................... 42 

Robertson, Dr. Lindsay G.: 

Testimony .......................................................................................................... 8 

Prepared statement .......................................................................................... 51 

Response to a question from Senator Hatch .................................................. 53 

COMMUNICATIONS

Arctic Slope Regional Corporation (ASRC) ............................................................ 55 

Center for Fiscal Equity .......................................................................................... 59 

Christensen, Hon. Donna M. .................................................................................. 61 

Crow Tribe of Montana ........................................................................................... 66 

Jamestown S’Klallam Tribe .................................................................................... 74 

Mandan, Hidatsa, and Arikara Nation .................................................................. 84 

National Congress of American Indians ................................................................ 91 

Oglala Sioux Tribe ................................................................................................... 101 

(III) 

(1) 

TAX REFORM: WHAT IT COULD MEAN FOR 

TRIBES AND TERRITORIES 

TUESDAY, MAY 15, 2012 

U.S. SENATE, COMMITTEE ON FINANCE, Washington, DC. 

The hearing was convened, pursuant to notice, at 10:05 a.m., in 

room SD–215, Dirksen Senate Office Building, Hon. Max Baucus 

(chairman of the committee) presiding. 

Present: Senators Bingaman, Cantwell, Menendez, and Hatch. 

Also present: Democratic Staff: Russ Sullivan, Staff Director; Lily 

Batchelder, Chief Tax Counsel; Richard Litsey, Counsel and Senior 

Advisor for Indian Affairs; Ryan Abraham, Tax Counsel; Tiffany 

Smith, Tax Counsel; and Jeff VanderWolk, International Trade 

Counsel. Republican Staff: Chris Campbell, Staff Director; Tony 

Coughlan, Tax Counsel; and Nick Wyatt, Tax and Nominations 

Professional Staff Member. 

OPENING STATEMENT OF HON. MAX BAUCUS, A U.S. SENATOR 

FROM MONTANA, CHAIRMAN, COMMITTEE ON FINANCE 

The CHAIRMAN. The committee will come to order. 

There is a Crow proverb that says, ‘‘Man’s law changes with his 

understanding of man. Only the laws of the spirit remain always 

the same.’’ 

Our desire to spur broad-based economic growth and give help to 

those who need it stays the same, but our laws are ever-changing. 

And, while some are well-intentioned, the 15,000 changes made to 

the tax code since 1986 have created too much complexity and unfairness. Tax reform needs to simplify the code in a way that creates jobs and encourages growth. 

Today we will look at tax reform and how it affects Indian tribes 

and the United States’ five territories—Puerto Rico, U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands. 

Indian governments and the territories are in some ways similar 

to State governments: each provides hospitals, public schools, and 

law enforcement, for example. But U.S. policies do not recognize 

tribal governments or territories as States or fully sovereign nations. Instead, U.S. law has a patchwork of complicated rules for 

each territory. Every tribal government’s U.S. policies are inconsistent. 

Tax policy is a microcosm of this inconsistency. The unemployment rate on some reservations, such as the northern Cheyenne 

reservation in Montana and the Pine Ridge reservation in South 

Dakota, is 80 percent. One in four Indians lives below the poverty 

2 

line. American Indians’ median income is 31 percent less than all 

other Americans. U.S. territories and commonwealths also suffer 

from high unemployment. 

In the past, Congress has recognized the special status of tribal 

governments and the island territories and taken steps through our 

tax policies to improve their economic conditions. We provided accelerated depreciation for capital investments and an employment 

credit for businesses located in Indian country. Congress also allowed businesses to claim a credit for the production of coal from 

Indian land. 

The accelerated depreciation provision brought jobs and economic 

activity to the Crow tribe in Montana when Westmoreland Coal 

used it to boost profits. But there are issues with these provisions. 

Two-thirds of the State of Oklahoma qualifies as an eligible Indian 

reservation under the accelerated depreciation provision and employment tax credit; perhaps the tax laws need to be better targeted. 

Congress should also level the playing field for tax-exempt bonds. 

States are currently allowed to issue tax-exempt bonds for any public purpose. These bonds help governments access cheap capital to 

build schools or courthouses. States can also use them to finance 

tourism and economic development projects like municipal golf 

courses, convention centers, and hotels. 

In contrast, tribal governments can only issue bonds for government buildings. Their bonds have to pass what is called an ‘‘essential government’’ test. To address this inequity, in 2009 Congress 

authorized $2 billion of tribal economic development bonds for any 

purpose other than gambling facilities. The Treasury Department 

studied the program, and it recommended that Congress repeal the 

essential government test. We should do this as part of tax reform. 

Another area of concern for tribal governments is the application 

of the general welfare doctrine. This doctrine allows governments 

to provide benefits to citizens without those benefits counting as 

taxable income. 

Tribes provide many benefits to their members, including educational assistance and cultural awareness, along with housing and 

meals. But it is often unclear which benefits are eligible for the exemption. That uncertainty is tough on families and tribal governments, and it is something we should fix. 

For U.S. territories, Federal tax law previously contained an economic activity tax credit and a possessions tax credit to encourage 

investment. These credits expired at the end of 2005. Another provision set to expire sends a portion of excise taxes on rum to two 

territories to help fund their government operations. 

Today’s hearing provides an opportunity to consider these issues 

in the context of broader tax reform. I hope today’s witnesses will 

help us understand what roadblocks should be eliminated and 

what incentives work for Indian country and for the territories. 

When I talk with tribes in Montana, they tell me the same thing: 

they want a better future for their children and less reliance on the 

Federal Government. These are goals we share. 

So let us use tax reform as an opportunity to achieve these goals. 

Let us think outside the box. Let us be creative here. Let us hear 

what might be done to help tribes and territories meet their goals. 

3 

And, in the spirit of the Crow proverb, let us take this opportunity 

to make man’s law reflect our common desires. 

[The prepared statement of Chairman Baucus appears in the appendix.] 

The CHAIRMAN. Senator Hatch? 

OPENING STATEMENT OF HON. ORRIN G. HATCH, 

A U.S. SENATOR FROM UTAH 

Senator HATCH. Well, thank you, Mr. Chairman. This hearing 

deals with, as you said, two very important, yet distinct, subject 

topics: tribal tax issues and territory tax issues. I want to stress 

that I do not come into this hearing with any pre-conceived agenda 

as to how we ought to treat tribes and territories. Rather, we must 

consider how we can be most productive on these matters when we 

undertake fundamental tax reform. 

With respect to tribal tax issues, certain of them, such as the 

general welfare exclusion, seem to have been outstanding for several years. This committee needs to determine the scope of actions 

to be taken when final tax reform is finally realized. 

Aside from the long-term implications for tax reform, there are 

short-term questions concerning the subject matter of today’s hearing. Several so-called tax extenders explicitly designed to aid Native American tribes, such as accelerated depreciation for business 

property on Indian reservations, have actually expired. A credit for 

the production of Indian coal will expire at the end of this year. If 

we are going to break out of the repetitive loop of short-term extensions, we should not put off a discussion of these temporary measures, even prior to comprehensive tax reform. 

I am also interested to hear about the tax treatment of territories. In a nutshell, even though the people of the various possessions are United States citizens or nationals, most do not pay tax 

to the Federal Government but rather to their possession’s government. 

Some U.S. possessions have a mirror tax code with tax laws essentially identical to the U.S. Internal Revenue Code, simply swapping the name of the possession wherever the Internal Revenue 

Code says ‘‘United States.’’ Yet, others are given more autonomy to 

write their own tax laws as they see fit. 

In some ways, possessions are treated like foreign countries. In 

other ways, however, they are treated like States. For example, research and development in a territory is eligible for the R&D credit, just as if the R&D were performed in a U.S. State. However, income taxes paid to a possession’s government are generally eligible 

for a U.S. foreign tax credit, just as if paid to a foreign government. 

Of course, taxes paid to a State government are not creditable, and 

only sometimes deductible. 

I will be interested in understanding whether greater consistency 

in the tax treatment of possessions is desirable or feasible. Now, I 

do share the chairman’s dedication to thoroughness that this committee’s tax reform hearings represent and the emphasis they place 

on technical knowledge, and I expect that this hearing will make 

a worthy contribution to that particular effort. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator. 

4 

[The prepared statement of Senator Hatch appears in the appendix.] 

The CHAIRMAN. I would now like to introduce our four witnesses. 

First is Ms. Sarah Ingram. Ms. Ingram is the Commissioner for 

Tax Exempt and Government Entities at the Internal Revenue 

Service. Thank you for coming. We will be asking some questions. 

Next, the Honorable Robert Porter, president of the Seneca Nation 

of Indians. Thank you, Mr. President, for being here. Our third witness is Dr. Lindsay Robertson, professor of law at the University 

of Oklahoma. Finally, Dr. Steven Maguire, a Specialist in Public 

Finance at the Congressional Research Service. Thank you all very 

much for coming. 

You probably know our usual practice here is, your statement is 

automatically included. You may each speak about 5 minutes. I say 

this all the time and keep on saying it: do not pull any punches, 

say what you think, be candid. You cannot take it with you. Tomorrow is gone after today. [Laughter.] 

So, Ms. Ingram? 

STATEMENT OF SARAH HALL INGRAM, COMMISSIONER, TAX 

EXEMPT AND GOVERNMENT ENTITIES, INTERNAL REVENUE 

SERVICE, WASHINGTON, DC 

Ms. INGRAM. Thank you. Good morning, Chairman Baucus, 

Ranking Member Hatch, and members of the committee. I appreciate the opportunity to be here to discuss the general welfare exclusion as it applies to tribal programs and to discuss tribally 

issued tax-exempt bonds. 

As I begin, I want to acknowledge that the United States has a 

unique government-to-government relationship with the Indian 

tribes, as set forth in the Constitution of the United States, treaties, statutes, executive orders, and court decisions. 

The Office of Indian Tribal Governments within the IRS was created more than a decade ago in response to requests by tribal leaders. The office exists to facilitate the government-to-government relationship and to assist tribes in meeting their Federal tax obligations. 

First, I would like to address the general welfare exclusion. 

Tribes, like all governments, sponsor programs designed to support 

their members. To be very clear, whether this tax exclusion is or 

is not applied does not limit what benefits or social programs tribes 

can provide to their members. The question is whether payments 

made through these programs are excludable from the income of 

the recipient under the general welfare doctrine. 

There are two key tax concepts. First, code section 61 provides 

that gross income includes all income derived from whatever 

source, and the second, the general welfare exclusion, is a non-code 

exception, an administrative exclusion that has been developed in 

official IRS guidance and recognized by the courts and Congress 

over more than 50 years. 

Despite the statutory breadth of section 61, the administrative 

rulings show that payments made by governmental units, tribal or 

non-tribal, can be excluded from a recipient’s gross income under 

the general welfare doctrine, if the payments: (1) are made under 

a governmental program; (2) are for the promotion of general welVerDate Nov 24 2008 20:32 Jun 17, 2013 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 R:\DOCS\80928.000 TIMD
5 

fare generally based on individual, family, or other needs; and 

(3) do not represent compensation for services. 

The IRS does not have, and has never had, a special program for 

examining tribal governments’ social welfare programs. The question may arise if the tribe seeks a letter ruling about a specific program. It can also arise during an IRS review of tribal governments’ 

tax reporting compliance. 

The code requires all persons, including Indian tribal govern- ments, to report to the IRS certain payments of $600 or more. During an examination, records may show such payments to tribal 

members, requiring further inquiry as to whether the general welfare exclusion applies, because, if so, then the amounts do not have 

to be reported. 

The IRS always examines a program using the same 3-prong 

analysis. Comments from the tribal community have focused on 

whether the payments are being disbursed based on the needs of 

the recipient and on the issue of whether the payments constitute 

compensation received for services. 

While there are many tribal and non-tribal examples in administrative rulings, the difficulty has been that each application is factspecific, and the historical and cultural context within the tribal 

government environment adds a layer of complexity. 

In response to concerns raised by various tribes and tribal leaders, the IRS issued Notice 2011–94 last November, inviting comments concerning the application of the general welfare exclusion 

to Indian tribal government programs and beginning a specific consultation process with tribes on how to find a solution that addresses their concerns and improves clarity and consistency of the tax 

law. 

Since then, the IRS has received numerous written comments 

from tribes and tribal leaders, which we are carefully reviewing, 

and the IRS and Treasury have engaged in multiple consultation 

sessions, such as in November during the White House Tribal Nations Conference, in March during the National Congress of American Indians’ Annual Conference, and in a few weeks we will host 

another consultation session through teleconference to facilitate 

participation. 

The IRS plans to publish written guidance that will address 

issues and respond to concerns raised by tribes in their oral and 

written comments. Our intent is that this published guidance, 

along with improved internal coordination procedures, will provide 

increased clarity and consistency of the application of the general 

welfare doctrine. Tribal concerns are very important to us, and we 

look forward to continuing to work with tribes on this item in the 

future. 

My second topic is tribally issued tax-exempt bonds. In the interest of time, I would like to refer the committee to my written testimony, with just two notes. I would note that we are taking into account recent community input on the usage of American Recovery 

and Reinvestment Act Tribal Economic Development Bonds, and 

we expect to publish revised procedures to reallocate the unused 

amounts. 

Also, as requested by Congress, Treasury provided a report last 

December containing legislative proposals to facilitate the use of 

6 

bond financing by tribal governments under rules more closely parallel to those applied to State and local governments. 

I am aware of the administration’s commitment to strengthen 

and build the government-to-government relationship between the 

United States and tribal nations, and I appreciate the committee’s 

interest in these matters. 

Thank you. That concludes my testimony. I would be happy to 

take any questions. 

The CHAIRMAN. Thank you, Ms. Ingram, very much. 

[The prepared statement of Ms. Ingram appears in the appendix.] 

The CHAIRMAN. President Porter? 

STATEMENT OF HON. ROBERT ODAWI PORTER, PRESIDENT, 

SENECA NATION OF INDIANS, SALAMANCA, NY 

President PORTER. Nya-weh Ske-no. Mr. Chairman, Vice Chairman Hatch, Senator Bingaman, Senator Cantwell, I am honored to 

be here, and I am thankful that you are all well. 

I am here to testify on the promise of tax reform for American 

Indian Nations and ask that my written testimony be placed into 

the record. 

[The prepared statement of President Porter appears in the appendix.] 

President PORTER. I am here today on behalf of the Seneca Nation of Indians, which I serve as its elected president. The Seneca 

Nation is one of America’s earliest allies, historically aligned with 

the other members of the six nations of the Haudenosaunee Confederacy and living in peace with the American people since the 

signing of the Canandaigua Treaty 217 years ago. 

In that treaty, the United States promised that it would recognize the Seneca Nation as a sovereign nation, that it would ensure 

that our property and activities would not be taxed, and that it 

would forever secure our title to our lands. This treaty belt that I 

hold up, the ‘‘Guswhenta,’’ or the Two Row Wampum belt, is a symbol of the continued recognition and respect that we agreed to hundreds of years ago. 

Because of our treaty-protected freedoms, the Seneca Nation has 

been able to achieve some economic success in recent years, mainly 

as a result of our commerce with non-Indians involving tobacco, 

gaming, and other related ventures. I encourage this committee to 

shape its tax reform effort for all Indian nations so that it maximizes our freedoms, which are premised upon treaties and territorial tribal sovereignty. 

In the Seneca Nation we have long believed that our treaties 

with the United States require that the Seneca Nation, our people, 

our activities, and our lands be treated as immune from all Federal 

and State taxation. However, many aspects of our treaty-recognized 

freedoms have been eroded over time, including tax burdens imposed by external governments which have diverted wealth from 

our territories and made much of Indian country unattractive for 

investment. 

For specific analysis of several areas of concern to Indian country, I draw your attention to the excellent comments that have 

been submitted by the United South and Eastern Tribes and the 

7 

National Congress of American Indians. As a general matter, however, if tax reform is to work in Indian country, it must be, first, 

consistent with the principles that are at the foundation of Indian 

policy at its best. 

The tribal nations are governments whose exclusive authority is 

to govern all economic activity in our territories, and that is fully 

respected as a matter of Federal law. Resurrecting this tribal territorial sovereignty approach must be the focus of congressional tax 

reform efforts if they are to succeed. 

In recent decades, tax reform ideas, like the Indian Reservation 

Wage and Investment Tax Credits, have not been large enough, 

have not been of long enough duration, or have not even been as 

simple to administer as necessary to induce the private sector to 

invest and locate new jobs in Indian country. Because these proposals have made all of Indian country eligible, in theory the 

budget-scoring rules that estimate the costs of these reforms have 

led Congress to water down their benefits to useless levels. 

Many of the good people in this room have worked hard at tax 

reform ideas in the past. They sincerely thought that they would 

bring benefit to Indian country. But these complex schemes mainly 

created work for lawyers, accountants, consultants, and government administrators. With all due respect, they have produced little tangible benefit for Indian country. If you drive through most 

Indian territories in the Great Plains or anywhere else, you can see 

the evidence of the poverty that makes the undeniable point that 

these incentives have not worked. 

As you shape tax reform in Indian country, I urge you to keep 

it simple so that it can be implemented without Indian people having to hire an army of expensive lawyers, accountants, and consultants. Keep it simple so that local businesses and potential investors 

can make sense of it and generate jobs for native people. 

In my view, the accumulated decades of Federal tax policy failures in Indian country make the case for trying something bold and 

different based upon our aboriginal treaty relationship. Instead of 

dialing back potential tax incentive benefits to useless levels, I urge 

you to recognize unlimited tax immunity on a limited number of 

footprints in Indian country for a limited number of Indian nations. 

In other words, I suggest that you shape tax reform law so as to 

restore complete tax immunity in a demonstration or pilot project 

whose size is limited to make it cost-feasible but with unlimited 

benefits to facilitate chances of success. 

I have submitted proposed bill language for this tax reform idea. 

It would authorize a pilot project to establish up to 50 tax-free tribal empowerment zones of limited acreage. These zones would be 

like tax-free economic oases in a desert, importing and recycling 

private sector money into Indian country where it has rarely, if 

ever, been invested for generations. 

Such a policy could induce a manufacturing company to locate in 

Indian country in Montana rather than going to India. It could also 

motivate a grocery store chain to build their next store in Indian 

country. 

Half of the tax-free tribal empowerment zones would be reserved 

for applicant Indian tribes with an unemployment rate exceeding 

50 percent under the latest Bureau of Indian Affairs workforce reVerDate Nov 24 2008 20:32 Jun 17, 2013 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 R:\DOCS\80928.000 TIMD
8 

ports. The remaining half of the zones would be awarded to applicant Indian tribes that competitively demonstrate the strongest 

available tribal institutions, fostering effective and stable selfgovernment, predictable legal infrastructure, and tribal policies facilitating entrepreneurial economic development in a businessfriendly climate. 

Each tribal empowerment zone would be a tax-free territory, immune from all Federal, State, and local income, sales, and excise 

taxes, and would have an immediate impact on investment and job 

creation in Indian country. 

Mr. Chairman and Senators, to put it simply, current Federal tax 

incentive policies for Indian country have not worked. Persistent 

poverty and harsh unemployment still enslave Indian country and 

deprive too many Indian people of a fair chance at living a full and 

complete life. The social problems our people face are most often 

rooted in intergenerational poverty. We are tired of our territories 

being drained of their wealth for the benefit of others. Please help 

us restore the flow of wealth back into our nations. 

My hope is that you will keep your tax reform efforts simple and 

consistent with tribal territorial sovereignty. I would recommend 

for your consideration the creation of tax-free tribal empowerment 

zones in Indian country so that the private sector will be induced 

to re-enter Indian country in partnership with sovereign tribal governments and Indian entrepreneurs to let the marketplace create 

jobs and provide goods and services in Indian country. 

This model has worked with Indian gaming, where Federal law 

acknowledged tribal territorial sovereignty to protect Indian gaming markets and to allow billions of dollars to flow into Indian 

country, like islands in the middle of non-Indian gaming markets. 

Likewise, tax reform can create islands of tax-free tribal empowerment zones that attract private sector investment into Indian country markets. 

I want to thank you for this opportunity to be here, and I certainly would be glad to take any questions, if you have them. 

The CHAIRMAN. Thank you very much. That was very interesting. 

Next is Dr. Robertson. 

STATEMENT OF DR. LINDSAY G. ROBERTSON, PROFESSOR OF 

LAW, UNIVERSITY OF OKLAHOMA COLLEGE OF LAW, NORMAN, OK 

Dr. ROBERTSON. Good morning, Chairman Baucus, Ranking 

Member Hatch, and other distinguished members of the committee. 

My name is Lindsay Robertson. I am the Judge Haskell A. Holloman professor of law and faculty director of the Center for the 

Study of American Indian Law and Politics at the University of 

Oklahoma College of Law. 

I have been a professor of Federal Indian law for more than 20 

years. From 2000 to 2010, I served as Special Counsel on Indian 

Affairs for Oklahoma Governors Frank Keating and Brad Henry. It 

is an honor to have been invited to address this committee on this 

important topic. 

First, I would like to place the issue of tax policy and tribal economic life in historical perspective, then address potential reforms. 

9 

While there are a number of areas in the Internal Revenue Code 

that could be improved to better serve tribes—input on which others, including President Porter and various organizations, are providing the committee—I would like to highlight two: the essential 

governmental function limitation on tribal tax-exempt bonding and 

current limitations on the application of the general welfare exclusion. 

Tribal governments in the United States are both pre-constitutional and extra-constitutional. That is, they existed before European settlement and they operate apart from, and not directly subject to, the Constitution. 

The U.S. Supreme Court has characterized tribes as ‘‘domestic 

dependent nations’’—nations, and not simply aggregations of individuals sharing a particular heritage, but domestic nations, not foreign nations, and therefore having a special relationship to the 

United States. 

In the same decision, Cherokee Nation v. Georgia, the court described that relationship as being like that of a ward to his guardian. In 1886 in Kagama v. United States, the court recognized the 

substantive legal consequence to this relationship. As guardian or 

trustee, the United States has power to legislate over Indian affairs, but also the responsibility to exercise that power to the ultimate benefit of the tribes. 

In furtherance of its trust responsibility, since Kagama the 

United States, at numerous stages, has acted proactively to address 

what it perceived to be problems in tribal economic development. 

These efforts have been bipartisan. 

For example, in the Indian Reorganization Act of 1934, President 

Franklin Roosevelt’s key tribal legislation, the Congress established 

tribal economic development funds, authorized the creation of tribal corporations, and provided tribes the means to reestablish jurisdiction over lands lost during the allotment era of the late 19th 

century, when collectively owned tribal lands were divided up and 

sold. 

The Self-Determination and Education Assistance Act of 1975, a 

Republican initiative, entrusted tribal governments with control 

over Federal programs operating within their communities, in part 

on the theory that only in that way would these programs be truly 

accountable to the people they served. 

Whether to comply with a trusteeship obligation grounded in law 

or morality, or because it simply makes economic sense, Congress 

has frequently employed its power to legislate tax policy to facilitate tribal economic development. 

Now I would like to say a few words in support of the two specific reforms I mentioned when I began my remarks. The first is 

the elimination of the essential governmental function limitation 

on tribal tax-exempt bonds found in 26 U.S.C. section 7871. 

Tribes are now, and have always been, handicapped under Federal law when it comes to the raising of capital for economic development activities. Since the Trade and Intercourse Act of 1790, 

tribal land sales without Federal authorization have been invalid 

under Federal law. While this restriction undoubtedly led to the retention of tribal lands that might otherwise have been lost, it had 

10 

the unintended effect of making tribal lands unavailable as security for conventional loans. 

Free alienability of such lands is not the solution as long as tribal jurisdiction is closely tied to land tenure. Instead, the solution 

must involve the creation of compensatory capital generation devices. 

Authorizing tribes to issue tax-exempt bonds was a step in the 

right direction. However, the essential governmental function limitation imposed on the use of funds raised through such bonding 

limited its utility as an engine for economic development. 

It is worth noting that the essential governmental function limitation is not applied to limit the use of funds raised through taxexempt bonding by States and municipalities, as Commissioner 

Ingram pointed out. The elimination of the limitation on taxexempt bonding by tribes would free tribes to raise capital otherwise unavailable to them and make it possible for them responsibly 

to create their own solutions in today’s difficult economic times. 

A second important tax reform involves the general welfare exclusion, which is currently interpreted to apply only to tribal 

means-tested programs. Tribal governments commonly provide benefits to their members, including health, education, and other services. Some of these, including for example language education, are 

considered essential for the preservation of tribal culture. When 

the United States taxes these benefits, tribes are handicapped in 

the services they can provide. Presently, it appears that, not only 

are these services being taxed, they are being audited at a disproportionate rate. It is difficult to imagine that the revenue generated by taxation of these services outweighs the harm done to 

tribal governmental operations and cultural preservation. 

Moreover, where services are provided to make up for deficiencies resulting from adverse conditions not of the tribes’ making, 

historical conditions, or indeed to further Federal policy objectives, 

taxing and auditing them appears to me inconsistent with the requirements of the Federal trust responsibility. 

I thank you for holding this hearing and for allowing me the opportunity to appear. I would be happy to answer any questions. 

Thank you. 

The CHAIRMAN. Thank you, Dr. Robertson. 

[The prepared statement of Dr. Robertson appears in the appendix.] 

The CHAIRMAN. You are last, Dr. Maguire, so you are the cleanup guy here. 

STATEMENT OF DR. STEVEN MAGUIRE, SPECIALIST IN PUBLIC 

FINANCE, CONGRESSIONAL RESEARCH SERVICE, WASHINGTON, DC 

Dr. MAGUIRE. Chairman Baucus, Ranking Member Hatch, and 

members of the committee, on behalf of the Congressional Research 

Service, I thank you for the opportunity to appear before you today. 

I have been invited here today to discuss how tax reform could 

affect the territories. In this oral testimony I will briefly summarize the U.S. tax treatment of the territories and discuss a selected 

number of expiring provisions, commonly referred to as tax extendVerDate Nov 24 2008 20:32 Jun 17, 2013 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 R:\DOCS\80928.000 TIMD
11 

ers, pertinent to the territories. Finally, I will outline how tax reform may affect the territories. 

Generally, Federal tax reform will have an impact on the territories in two ways. First, several territories use the United States’ 

tax code as it is written, replacing the words ‘‘United States’’ with 

the territory name. As a result, when the U.S. tax code changes, 

so does their tax code. Puerto Rico is the exception. 

Second, there are specific provisions in the U.S. tax code that directly benefit one or more of the territories. This group of provisions is often found in the so-called extenders legislation. I will discuss two extenders here. 

First, territories and taxation. The U.S. taxes residents and corporations located in the territories differently than if they resided 

in the United States. For individuals residing in the territories, 

their tax treatment is most similar to the tax treatment of foreign 

citizens. Generally, territorial residents are exempt from Federal 

taxes on territory-sourced income, but are, with some exceptions, 

taxed on income sourced in the U.S. 

In contrast, U.S. residents are subject to Federal taxes on their 

territory-sourced income as if it were foreign-source income. However, territorial taxes can be generally claimed as foreign tax credits to offset U.S. tax liability. Thus, as with foreign-source income, 

the United States concedes primary tax jurisdiction to the territory 

where the income is earned. With some exceptions, it retains primary tax jurisdiction of the U.S.-sourced income earned by territorial residents. 

Corporations chartered in the territories are treated like foreign 

chartered corporations under the Internal Revenue Code. In principle, they are exempt from Federal taxes on territorial income. 

U.S. firms that operate in the territories through subsidiaries can, 

at least potentially, defer Federal taxes on territory earnings. Generally, U.S. taxes are paid only when earnings are repatriated to 

the domestic parent, with the U.S. tax reduced by any foreign tax 

credits. 

The impact of U.S. tax reform on the territories would depend in 

large part on the specifics of U.S. tax reform and how the territories responded to the changes. One option would be for these territories to de-couple from the mirror system. This option would 

allow the territories to be largely unaffected by U.S. tax reform unless they choose to enact similar reforms; administrative complexity and compliance costs would likely rise with the de-coupling, 

however. 

Alternatively, continuing with a mirror system, the territories 

would incorporate the Federal changes. If the Federal changes 

focus on increasing progressivity of the tax code, such as higher 

rates for higher-income earners, the impact on territories would 

likely be muted, as average income is significantly lower in the territories. In any case, this option would effectively cede control of 

the territory’s tax system to the U.S. 

Now I will discuss provisions in the U.S. tax code benefitting the 

territories. The U.S. tax code includes at least three provisions that 

directly benefit taxpayers who have income from activities in the 

territories or who are resident in the territories. If tax reform were 

to include scaling back tax expenditures generally, one or all of 

12 

these may be curtailed or eliminated. Modifications or limitations 

to broader tax expenditures, such as tax-exempt interest on bonds 

issued by the territories, are not addressed in this testimony. 

Number one is the deduction allowable with respect to the income attributable to domestic production activities in Puerto Rico. 

U.S.-based entities, either individuals or corporations, are allowed 

to deduct 9 percent of taxable income that was earned in Puerto 

Rico. 

The deduction lowers the marginal effective tax rates of taxpayers, and the highest bracket amounts to just under 32 percent. 

This confers a tax advantage for these entities because likesituated entities without Puerto Rican or U.S.-sourced income cannot claim the same deduction unless they are taxed at a higher 

marginal rate. 

This provision expired on December 31, 2011. The President’s 

2013 budget proposes extending this provision through 2013. The 

expected revenue impact would be a reduction in Federal revenues 

of $312 million over the 3-year window of fiscal year 2012 through 

2014. 

If Congress chooses to broaden the base of both the individual 

and corporate income tax, they may choose to eliminate the special 

provision for entities with Puerto Rico-sourced income. The result 

may be some shifting of activity away from Puerto Rico, though the 

magnitude of this shift would seem minimal, especially in the short 

term, as much of the activity generating the income may not be 

easily or quickly shifted out of Puerto Rico. If Congress chooses additional structural reforms, such as lower overall rates, the value 

of the deduction to taxpayers would decline. 

Number two is a temporary increase on the limit of cover-over 

of rum excise tax revenue from $10.50 to $13.25 per proof gallon 

to Puerto Rico and the U.S. Virgin Islands. The United States levies a $13.50 per proof gallon excise tax on distilled spirits produced 

in, or imported into, the United States. Through 2011, $13.25 per 

proof gallon of all imported rum is transferred, or covered over, to 

the treasuries of Puerto Rico and the U.S. Virgin Islands. 

The Caribbean Basin Economic Recovery Act of 1983 provides 

that all revenue from Federal excise tax on rum imported to the 

United States from any source, including any foreign country, is remitted to the treasuries of Puerto Rico and the U.S. Virgin Islands. 

In fiscal year 2011, Puerto Rico received over $449 million in revenue, and the U.S. Virgin Islands received $155 million. 

The law does not impose any restrictions on how Puerto Rico and 

the U.S. Virgin Islands can use the transferred revenue. Both territories use some portion of the revenue to promote and assist the 

rum industry. Reports of the size of the subsidy vary considerably, 

though the amount ranges from roughly 6 percent of the coveredover revenue in Puerto Rico up to 18.5 percent in the U.S. Virgin 

Islands as of 2009. Since then, however, the subsidy has increased 

significantly. 

Beginning on January 1, 2012, the amount covered over to Puerto Rico and the U.S. Virgin Islands reverted to $10.50 per proof 

gallon. The fiscal year 2013 budget proposes extending the $13.25 

rate retroactively through 2013. The expected revenue impact of exVerDate Nov 24 2008 20:32 Jun 17, 2013 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 R:\DOCS\80928.000 TIMD
13 

tending the higher rate will be a reduction in the Federal revenues 

of $222 million over a 3-year budget window of 2012 to 2014. 

I see that my time is up. In the interest of time, I will end here 

and open it up for questions. 

The CHAIRMAN. All right. Thank you, Dr. Maguire, very much. 

[The prepared statement of Dr. Maguire appears in the appendix.] 

The CHAIRMAN. I would like to ask all of you, all four of you, do 

you basically agree that the limitation on bonds issued by tribes— 

that is, the essential government functions limitation—should be 

repealed? Right down the line. 

Ms. INGRAM. Yes. 

President PORTER. Yes. 

Dr. ROBERTSON. Yes. 

Dr. MAGUIRE. Yes. 

The CHAIRMAN. All right. So we have agreement there. 

Next, with respect to the welfare limitation on taxable income, 

I would appreciate it if you, Dr. Robertson, and anyone else, would 

indicate, how should that be modified, if at all? I mean, the argument is that there are some benefits conferred by tribes on their 

members. Really, some of that should not be taxable income. So 

where is the line? What is the test? Would there be any limitation? 

Your views? 

Dr. ROBERTSON. Well, I guess I would defer to a variety of organizations, including tribal governments, who have already been in 

communication with the Internal Revenue Service on this issue. 

But I can tell you, some of the proposals I am aware of include expanding the definition in the tribal context to eliminate the needsbased component of the analysis, maybe keep the other two elements of the analysis, but make the exemption from taxability no 

longer related to the income situation of the individual beneficiary, 

and maybe then loosen up the range of benefits provided that could 

qualify as welfare. 

Tribes do a lot of things that State governments do not do. I 

mentioned language education. Some tribes, to overcome traditions 

of poverty and for cultural reasons, provide clothing allowances to 

families to send their kids to school. Some of those families may 

be in poverty, some of them may not be in poverty, but this is 

something that is done across the board. To have some of those recipients singled out for taxation on the value of the benefit frustrates the tribes. 

The CHAIRMAN. All right. Either President Porter or Ms. Ingram, 

your thoughts? 

President PORTER. Mr. Chairman, I have a hard time seeing why 

any of the benefits that we are providing to our people should fall 

under any taxation because the services that we provide for our 

people are to help them. We have the worst health care, we have 

the worst degree of social problems in our Nations. 

The sources of income that we derive from our businesses, from 

our grants that we use to provide services, are going directly back 

to our people. We are not starting from some exalted position of 

health care or socioeconomic status where these are luxuries, 

where these are things that are perceived to be things that most 

humans do not have. We are trying to get back to a position of norVerDate Nov 24 2008 20:32 Jun 17, 2013 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 R:\DOCS\80928.000 TIMD
14 

mal after recovering from many, many generations of deprivation. 

So I would say that there should not be—— 

The CHAIRMAN. Do tribes provide unemployment benefits? 

President PORTER. We do not. We actually work in concert with 

the State system for purposes of unemployment insurance. 

The CHAIRMAN. All right. Sure. 

President PORTER. But we do not. 

The CHAIRMAN. Ms. Ingram? The general proposition of welfare 

limitation. 

Ms. INGRAM. I think we are in a position of trying to figure out 

how to administer something that is a creature of administrative 

rulings. It started in the environment of State and local governments, and over the years has been increasingly raising issues with 

Indian tribal government programs. 

I think our effort to step back for a moment, and through that 

notice and through a specific and formal consultation process, will 

allow us to hear a couple of things from the tribal community. One 

is, as has been mentioned, the kinds of programs that are either 

like those provided to the States or are unique in the tribal context 

and should be taken into account. We are listening very carefully 

to the input on that category of questions. 

Also, the question of the extent to which the taxation of the recipient should be based on their needs, is something that has been 

around for a long time in this string of administrative rulings, and 

is something we are hearing is of great concern. We have given favorable treatment or unfavorable treatment to lots and lots of governments, tribal and non-tribal, based on those standards, and I 

think it is perfectly reasonable for us to listen to the tribal community. 

The CHAIRMAN. But do you have a recommendation how to simplify this so the tribes do not have to jump through all these hoops? 

Ms. INGRAM. Well, I think we are on a journey with the tribal 

community to see if we can figure that out. This being an administrative doctrine and being very fact-specific in its nature, I think 

we would welcome, as much as the tribes would, trying to find a 

simpler way to approach this. 

The CHAIRMAN. All right. Thank you. My time is up. Thank you. 

Senator Hatch? 

Senator HATCH. Well, thank you, Mr. Chairman. 

President Porter, in your written testimony you are critical of 

many of the tax provisions that have been enacted in the past in 

order to aid Indian country. In their place, as I view it, you suggest 

the creation of a series of tax-free tribal empowerment zones. Now, 

from my reading of your idea, these areas would be exempt from 

all U.S. Federal and State taxes that might otherwise apply for a 

period of 10 years, as I understand it. 

Now, please describe how this process is fundamentally different 

from the renewal community and empowerment zone provisions 

that you criticize, and why do you think it would be more successful? How did you come to select 10 years as an appropriate lifetime 

for the proposal? 

President PORTER. Well, the proposal is rooted in the idea, Mr. 

Vice Chairman, that the existing provisions of law simply are too 

incremental. They are never permanent. They never allow for any 

15 

real foundation for growth and development. As a result, they do 

not work. 

Trying to attract companies to your territory, which I have tried 

to do, they look at these tax incentives, they look at the tax opportunities, and they say, well, who knows what is going to happen 

in a year or two, because it is not permanent. Congress has a pattern of delaying the extension. So from a business perspective, it 

is just not a very credible invite to be able to attract capital into 

our territory. 

Ten years might be a minimum. The idea that a company is 

going to work in our territories, in a zone in which there are no 

taxes, is patently attractive on its face. But then you get into the 

second-level questions, which are still a challenge: what is the legal 

infrastructure of the tribe? What is your access to markets if we 

are making a product? What is the demand for the services, if we 

are providing a service? There are still going to be other hurdles 

to overcome as it relates to this kind of development incentive. 

But I think, when it relates to creating an attractive magnet by 

which we can draw capital and investment—in my nation we have 

succeeded significantly, in the gaming context, to invite Wall Street 

money into our nation for investment for gaming facilities. I am a 

strong believer that we can do the same thing outside of gaming 

and help diversify our economies and become less dependent on 

that particular business, if we can have this kind of assistance 

from the Congress. 

Senator HATCH. Thank you. 

Dr. Maguire, let me ask you a question. As your testimony has 

made clear, there are areas where the territories could be treated 

in a more uniform fashion. For example, some have mirror codes 

and some have non-mirror codes; in some ways they are treated 

like foreign countries, in other ways, like States. 

Now, do you think greater uniformity is necessary or feasible or 

desirable? More specifically, does it make sense that the R&D performed in a territory qualifies for the R&D credit as if the territory 

were a U.S. State, while at the same time income taxes paid to a 

territory may be claimed as a foreign tax credit, as if the territory 

were really a foreign country? 

Dr. MAGUIRE. Well, I think greater conformity across the territories would decrease compliance costs and increase administrative 

simplicity. On the other side of the coin, Congress has decided to 

confer certain tax advantages to the territories, recognizing their 

position economically. 

So it is true that the research and development tax credit would 

seem to be a ‘‘double dipping’’ for the territories if there is also a 

foreign tax credit available. So, when balancing greater uniformity 

with providing tax benefits to the territories as a general welfare, 

I think that is a question that Congress will have to answer, and 

unfortunately I do not have a good answer for you. 

Senator HATCH. Does it make sense that the section 199 domestic manufacturing deduction may be claimed for activities in Puerto 

Rico but not in other territories? 

Dr. MAGUIRE. That does not make sense to me, though those who 

crafted the legislation, I am sure, had legitimate reasons for structuring the section 199 the way it is structured. 

16 

Senator HATCH. My time is about up. 

The CHAIRMAN. Thank you very much, Senator. 

Senator Menendez is not here, so we will move to Senator Bingaman. 

Senator BINGAMAN. Thank you very much. 

Let me ask Ms. Ingram, you indicate that the IRS plans to publish written guidance to address, particularly, this issue of the general welfare exclusion. 

Ms. INGRAM. Yes. 

Senator BINGAMAN. Is there any consideration, or does it make 

any sense to consider the wealth of a tribe in those guidelines that 

you issue? I mean, my sense is that many tribes are as President 

Porter has described, and they have great needs and substantial 

poverty and all. 

But we have some exceptions. We have some tribes in this country that are doing quite well, primarily because of gaming, but in 

some cases other factors. Is there any consideration of distinguishing in that regard, or would it make sense to even think 

about that? 

Ms. INGRAM. Senator, we are not going along those lines at all. 

That is not a criterion that we have ever used with State and local 

government programs, and we have not to date, and do not have 

any plans to take it into account in the Indian tribal community. 

Senator BINGAMAN. All right. 

Let me perhaps ask Dr. Maguire about his testimony. He talks 

about one option if we go ahead here with major tax reform. He 

says one option would be for these territories to decouple from the 

mirror system that has been in place. That would seem to me to 

be a bad idea. I mean, it would seem to me that, to the extent you 

decouple, you add great complexity to the issue. 

You have each of the territories essentially developing its own 

tax provisions, which of course would then require not only that 

you hire a raft of lawyers and accountants, as you have to today, 

but you would have to hire a very specific group of lawyers and accountants who would presumably have the expertise to tell you 

what the tax system was in each of these territories. What is your 

thinking on this? 

Dr. MAGUIRE. I tend to agree with you that, from an administrative simplicity and compliance cost, that would be a move in the 

wrong direction. That said, within the territories, overlaying the 

U.S. tax code onto the territories also overlays the policy decisions 

of the U.S. Congress on the territories. So, the actions that Congress takes will have a direct impact on the territories. So again, 

there is that rub between administrative simplicity and complexity 

and what you do to promote the economic efficiency within the island or within the territory, if that makes sense. 

Senator BINGAMAN. I think Senator Hatch was getting at this in 

some of his questions. But I guess one obvious sort of threshold 

issue is, should we have a guiding principle with regard to these 

territories, which essentially determines that they be treated as 

States, except where we decide that there is an exception to that? 

Is that kind of a guiding principle in place today? Would it make 

sense for us to consider that and have that as a guiding principle, 

in your view? 

17 

* For more information, see also, ‘‘Overview of Federal Tax Provisions and Analysis of Selected 

Issues Relating to Native American Tribes and Their Members,’’ Joint Committee on Taxation 

staff report, May 14, 2012 (JCX–40–12), https://www.jct.gov/publications.html?func= 

startdown&id=4426, and ‘‘Federal Tax Law and Issues Related to the United States Territories,’’ 

Joint Committee on Taxation staff report, May 14, 2012 (JCX–41–12), https://www.jct.gov/ 

publications.html?func=startdown&id=4427. 

Dr. MAGUIRE. I think that is one of the options that was explored 

by the Joint Committee on Taxation in their pamphlet, that they 

prepared for the hearing today.* In that pamphlet, they recognized 

the difficulty in treating them as States because they are very different than the States, economically and demographically. So from 

that perspective, I do not think it would be a good default position. 

A good default position may be that they all use the mirror system, they all use the Federal tax code, and then as Congress sees 

fit—makes adjustments for territories as needed rather than having a mix of dual-filing entities versus single-filing entities within 

the territories—using a consistent treatment to begin with and 

then making modifications. 

Senator BINGAMAN. My time is up, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator. 

Senator Cantwell? Oh. I will go to Senator Menendez. 

Senator MENENDEZ. Thank you, Mr. Chairman. 

Dr. Maguire, thank you for your testimony. Above all, I appreciate your expertise on so many issues: AMT, bond financing, the 

rum cover-over program. It has been incredibly beneficial to have 

your expertise. That is really where I want to focus my questioning, is on the rum cover-over program. 

I find it ironic that Diageo’s rum brand is named after a pirate, 

because they set a precedent of pillaging a program that is meant 

to provide budgetary support to the territories. In my view, the 

deal Diageo struck with the U.S. Virgin Islands devastates the effectiveness of the cover-over program for the people of the territories by gutting the revenue that is supposed to go to vital public 

services and sets a precedent that is pretty terrible, and a race— 

I think a death spiral—to the bottom. 

So this is a real concern to me, and I would like to have you help 

us shed some light on some of these points. What is the total value 

of subsidies provided to Diageo by the U.S. Virgin Islands, which 

include, as I understand it, paying for a new distillery then giving 

the ownership of the distillery to the company, paying for much of 

the cost of the main ingredient, molasses, and paying for a substantial portion of marketing costs? 

Dr. MAGUIRE. In 2009, I went through and calculated it on my 

own instead of relying on outside reports of what the subsidy was, 

and I arrived at 18.5 percent. Of course, since the Diageo plant was 

constructed and the agreement implemented, that subsidy has increased significantly. I have seen internal documents between the 

government of the Virgin Islands and Diageo that the subsidy is 

closer to 46 percent today. 

Senator MENENDEZ. So it is 46 percent of cover-over revenues 

just to one company. 

How many people are employed by the distillery that produces 

Captain Morgan’s r um? 

Dr. MAGUIRE. In the agreement, Diageo indicated they would 

hire anywhere from 40 to 70 people in the facility itself, but that 

18 

does not take into account any ancillary jobs that would be created 

from the activity at the plant. 

Senator MENENDEZ. And of these jobs, how many would you say 

were a net increase in the territories versus simply a transfer of 

jobs between two territories? 

Dr. MAGUIRE. That is a good question. To the extent that there 

is mobility between Puerto Rico and the U.S. Virgin Islands, I am 

not certain of that. There is probably a mix of replacing and new 

employment, but on net it is probably a relatively small percentage 

of those new jobs. 

Senator MENENDEZ. Well, we believe that we are close to zero, 

since the loss of production in Puerto Rico led to a commensurate 

loss of jobs there. 

So, looking at how these numbers intersect, how much would you 

estimate is going to Diageo per job transferred from Puerto Rico to 

the U.S. Virgin Islands? 

Dr. MAGUIRE. Well, in fiscal year 2011, the U.S. Virgin Islands 

received $155 million in covered-over revenues, so half that, or 46 

percent, would probably be $70 million or so in fiscal year 2011. 

But, as production ramps up moving forward, the cover-over value 

would increase, production will increase, and the subsidies will also 

increase, so that number will get larger. 

Senator MENENDEZ. So I look at those numbers, and I look at the 

number of jobs, the 40 to 70 direct jobs, and maybe an indirect employment of approximately 230 jobs. Basically, the U.S. Virgin Islands will pay Diageo between $1.2 and $2.2 million per direct job 

per year created, and approximately $391,000 when indirect jobs 

are estimated. So that is pretty outrageous. That is pretty outrageous, and it is unsustainable. 

Can you briefly talk about what has happened to the subsidies 

for the other producers in Puerto Rico and the U.S. Virgin Islands 

since the Diageo contract became public? 

Dr. MAGUIRE. I have seen news reports that indicate the government of Puerto Rico has loosened their self-imposed restriction on 

the subsidies that they can provide to rum producers in their territory. It seems that other rum producers not named Diageo have 

also requested additional subsidies in light of the Diageo agreement, and those are news reports that I have not verified myself, 

but they seem reasonable. 

Senator MENENDEZ. Well, I can tell you that the government of 

Puerto Rico, based upon what happened with the Virgin Islands, 

then increased its assistance to rum producers from 6 to 10, and 

now 25 percent, so much so that CARICOM, the Caribbean nations, 

have told the executive branch that the subsidies are unfair trade 

practices and violate international trade rules. 

Let me close by saying, is it fair to say that, based upon all this 

information, that money is flowing to profits, not jobs, here at the 

end of the day? 

Dr. MAGUIRE. To the extent that we understand how the subsidy 

is used by Diageo, it does appear as though it does not go to the 

workers at the plants, and it does not go to lower rum prices, necessarily. Most of it would go towards the investors in the rum companies. 

19 

Senator MENENDEZ. Mr. Chairman, so this is the challenge we 

have if we allow this to continue to happen. Instead of supporting—which was the intention of the rum carry-over provision—the 

people of the territories to help improve the standard and quality 

of their lives, what we are doing is having millions of dollars go for 

profits for companies that are not really producing the benefit for 

these territories. 

So I hope we can work with the chairman and the committee to 

try to find the right balance here so that, at the end of the day, 

we can pursue the original intention. Because otherwise I could see 

very easily that there will be a tax on this program, to the extent 

that they will seek to take it away, and it will be far worse for the 

territories at the end of the day. 

The CHAIRMAN. Thank you, Senator. 

Senator Cantwell? 

Senator CANTWELL. Thank you, Mr. Chairman. Thank you for 

holding this hearing. 

One of the issues—we have many tribes in the Northwest, and 

my colleague from New Mexico asked about—well, many of my colleagues asked about the general welfare doctrine. But I am particularly interested in the area of education, because Native Americans 

have a lower high school graduation rate. In fact, I think it is 

something like 23.5 percent who do not complete high school or the 

equivalency of high school. So juxtapose that to, say, 4.7 percent of 

whites, or 14 percent of Asians, and a whole host of other segmentations. 

So, when it comes to this issue of taxation and what is a general 

welfare or social benefit program, you can have something like tuition—and I certainly applaud Native American tribes across America for supporting continued education for their members. I think 

this is a very, very positive sign. But my understanding is, we have 

a lot of mixed signals here, so that you can have tuition that is covered under this social benefit or general welfare idea, but then 

books or room and board are not. So, why is there a difference, and 

what do you think we need to do to clarify this? So, either Professor Robertson or President Porter. 

President PORTER. Senator, I think that you have hit the nail on 

the head when it comes to the challenge of administering in this 

area. That is why I do not think there should ever be a tax question when it comes to providing backpacks or pencils to children in 

our nation, or any Indian nation in the United States. We are, in 

many cases, not continuing education, we are starting it. 

In our case, our language is almost gone, and we are trying to 

re-install a language immersion school. We are trying to raise our 

children in a way of life that Americans take for granted. But it 

is the universal solution to our problems when we can provide a 

strong education, and we have a multitude of issues with the potential tax threat. 

Even on the financing side, building schools, finding ways in 

which we can provide for that, we need to make sure that those 

opportunities are protected so that we can move forward with our 

investments. 

Senator CANTWELL. Doctor? 

20 

Dr. ROBERTSON. I agree with President Porter. I would just sort 

of amplify that I think the benefit of the exclusion applies to a multitude of levels of education. It is not simply elementary education 

or secondary, but a lot of tribes are providing monies to send their 

members away to study medicine, to study law, to study business, 

to study engineering, so that they can come back and help rebuild 

the tribe’s health base, infrastructure, political institutions, that 

sort of thing. All of this is seen as being for the good of the community within those communities more than for the good of the individual, who then otherwise would be taxed on the receipt of a benefit. 

Senator CANTWELL. And so I would just assume that, aside just 

from compliance, that the complexity of knowing what is and what 

is not excluded is pretty hard to figure out. Is that correct? 

Dr. ROBERTSON. Yes it is, under the status quo. And I do not 

think the Service disagrees with that, as I understand from Commissioner Ingram’s testimony, which is why they are working with 

tribes—and I think this is creditable—to try to figure out a way to 

simplify these rules, if not eliminate them, which is President Porter’s suggestion, which would simplify things. 

Senator CANTWELL. Ms. Ingram, is there a simplification on this? 

Ms. INGRAM. Well, as I mentioned before with Chairman Baucus, 

we are very cognizant of this issue, which is why we have reached 

out for input, and one of the categories we have asked specifically 

for input on is in the area of education, as well as the area of cultural practices, events, and issues. We have tried over the years to 

figure out how to take the principles that were largely crafted in 

the State and local government environment and translate those to 

the more complex situation involving the Indian tribal community. 

We have asked for, and continue to receive, a rich amount of 

input about what kinds of activities people are doing and want to 

do, and how these are either the same as what we currently allow 

for States—and we need to be consistent with that—or to what extent it needs to be different. We are trying to listen to that input 

to figure out what to do next. 

Senator CANTWELL. Do you think there is a difference between 

tuition and room and board? 

Ms. INGRAM. I think there is both some information and misinformation about where we are in agreement or disagreement. One 

of the things we are doing, in addition to the consultation sessions, 

is tightening some of our coordination within our own organization 

to see if we cannot eliminate some of the fact patterns where we 

know already, without further discussion, that we should not be 

questioning. I think this discussion will create areas—we hope— 

where we can provide some broader, simpler ways for both of us 

to address this and all the other issues that are being raised. 

Senator CANTWELL. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Thank you all very much. This has been a very helpful hearing, 

with very good points to very difficult questions. My thought is just 

to move towards simplicity, and clearly repealing the essential government function provision will help make things a little more simple. 

21 

But I also urge you to give us your ideas. I mentioned the welfare provision. I did not get a chance to ask you, President Porter, 

I know some of the tribes do very well with gaming. Your economic 

opportunity zone looks very interesting, but I presume that would 

not apply to gaming reservations. I say that in part because we in 

Montana do not have the people for gaming. 

President PORTER. Right. 

The CHAIRMAN. It just does not work. Different tribes are different in different parts of the country. Just idle comments, unless 

you have something to say. 

Thank you all very, very much. I appreciate it. 

The hearing is adjourned. 

[Whereupon, at 11:08 a.m., the hearing was concluded.] 

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COMMUNICATIONS


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Æ 


80928090.eps