“Health Insurance Premium Tax Credit” (IRS REG-131491-10)

NIHB Supplemental Submission - Definition of IndianThe decision in the proposed rules to merely repeat the statutory definitions of―Indian‖ and to let this constitute the entirety of the regulatory definition, rather than to morespecifically spell out the meaning of the definitions creates ambiguity in the meaning of theACA and for those charged with its interpretation. This is especially true given that the threestatutory definitions are virtually identical, but not particularly susceptible to clearunderstanding without reliance on other regulations and materials of the agencies involved incarrying out the programs to which the definitions apply.It is hornbook law that ―judicial usage sanctions the application of the word‗ambiguity‘ to describe any kind of doubtful meaning of words, phrases or longer statutoryprovisions,‖ 76 and that ambiguity ―exists when a statute is capable of being understood byreasonably well-informed persons in two or more different senses.‖ 77 The Indian-specificExchange-related ACA provisions can be reasonably interpreted in a number of conflictingways, and are therefore ambiguous under the landmark case of Chevron U.S.A. v. NationalResources Defense Council, 78 which we discuss further in Section 5.3.2 of this Analysis andComment.The best evidence that reasonable people can interpret the statutory provisionsdifferently appears in the Exchange Establishment NPRM and Exchange Eligibility NPRMthemselves. Both preambles state that the definition of Indian in the IHCIA and the ISDEAAmean that an Indian is a member of a Federally-recognized Tribe, contrary to the plainlanguage of the statute, is a perfect example. 79 Also, persuasive is the fact that both CMSand IHS determined that they needed separate regulations and other guidance materials toassist Federal, Tribal and State officials about how to determine that a person falls within thestatutory definition. 80 While these regulations and other materials demonstrate that thestatutory definitions can be reconciled, mere restatement of the statutory language is notsufficient to actually do so.The reliance on three different statutory references (or none) for the definition of―Indian‖ in the ACA creates an inherent ambiguity that requires resolution. For example, §1311(c)(6)(D) of the ACA 81 creates ―special monthly enrollment periods for Indians (asdefined in section 4 of the Indian Health Care Improvement Act).‖ By comparison, §7677Black‘s Law Dictionary 88 (8th ed. 2004) (citation and internal quotation marks omitted).2A NORMAN J. SINGER & J.D. SHAMBIE SINGER, STATUTES AND STATUTORY CONSTRUCTION§ 45:2, at 13 (7th ed. 2007).787980467 U.S. 837 (1984).See, Section 3 of this Analysis and Comment.IRS allows the employment tax credit under IRC § 45A to employees who are enrolledmembers of an Indian tribe, but states that ―[e]ach tribe determines who qualifies for enrollment andwhat documentation, if any, is issued as proof of enrollment status. Examples of appropriatedocumentation . . . include a tribal membership card, Certified Degree of Indian Blood (CDIB) card . ...” IRS Form 8845 (emphasis added.) BIA issues CDIB cards to not only members of federallyrecognized tribes, but also to their descendants. Bureau of Indian Affairs, ―Certificate of Degree ofIndian or Alaska Native Blood Instructions,‖ OMB Control #1076-0153.81Codified as amended at 42 U.S.C. § 18031(c)(6)(D).National Indian Health Board Page 18 of 24 October 31, 2011