Yesterday I wrote about the need for increased tribal jurisdiction and enhanced tribal courts. Yesterday, Samantha Bee did a segment on tribal courts and compared Donald Trump’s comments about the judge in his Trump University litigation to comments made about Tribal Court judges in the Dollar General v. Mississippi Band of Choctaw Indians. Timely, hysterical and thought-provoking. Enjoy!
Last week, the Bureau of Justice Assistance published the Joint Jurisdiction Courts: A Manual for Developing Tribal, Local, State & Federal Justice Collaborations. BJA, through the Center for Evidence-based Policy of the Oregon Health and Science University and Project T.E.A.M., a BJA-funded training and technical assistance providers, has published a manual for tribal and community leaders who want to develop joint jurisdiction courts or initiatives in their own communities.
Joint Jurisdiction Courts: A Manual for Developing Tribal, Local, State & Federal Justice Collaborations, is a guide that describes the process developed in one Minnesota community and adopted by other jurisdictions including communities in California and Alaska. The manual describes the benefits of intergovernmental collaboration, and provides suggested guidelines for developing a new joint jurisdiction justice collaborative based on identified needs, tribal and community culture, evidence-based treatment principals, articulated goals, and defined outcomes and includes best practices and lessons learned from Project T.E.A.M.’s work. The manual and supplementary materials can be found on the Project T.E.A.M. website: http://www.ohsu.edu/projectteam/manual. Also visit the Project T.E.A.M. website: www.ohsu.edu/projectteam.
This comes at a time when both Congress and Tribes are looking to fill the jurisdictional gaps on reservations. As recently as May, 2016, the Senate Committee on Indian Affairs held a hearing on S.2785, the Tribal Youth and Community Protection Act of 2016 and S.2920, the Tribal Law and Order Reauthorization and Amendments Act of 2016. S.2785 would expand tribal criminal jurisdiction over non-Indians for certain child abuse and drug-related offenses committed in Indian Country, as well as crimes committed against tribal police officers exercising tribal criminal jurisdiction. S.2920 would explore the feasibility of integrating Federal law enforcement, public safety, substance abuse and mental health programs in Indian Country, provide for improved information sharing with Indian tribes, consult on tribal juvenile justice reform, reauthorize tribal court training, required the appointment of Federal public defenders for each district that includes Indian country, require a GAO report on justice for Indian juveniles, and other related requirements. (If you are interested in learning more about these bills, contact me for the memos we provided our clients on this issue). The Committee has scheduled a markup for these bills later this week.
However, the expansion of this jurisdiction requires tribes to “beef” up their tribal court systems. Exercising tribal jurisdiction is vital to building strong tribal communities and manuals like this provide free assistance information to Tribes and tribal courts seeking to improve on their current tribal judicial system. The Department of Justice offers Tribal Capacity Building grants to provide funding to strengthen the tribe’s ability to implement and enhance tribal justice systems through training and technical assistance to increase their knowledge of emerging technology, evidence-based practices, and new models of service. The 2016 grant application closed on June 2, 2016 but there will likely be additional opportunities in 2017.
Unfortunately, violence in our communities is a constant reality. Keeping our communities safe and providing victims with the opportunity to heal is worth expending the time and resources necessary to build vibrant and effective tribal justice systems.
With Hope for Safe and Healthy Tribal Communities,
Did you know that tourism supports more than 8.1 million jobs in the United States?
According to the U.S. Department of Commerce, this means that one out of every 18 Americans is employed by travel and tourism related businesses – most of which are small firms.
In 2012, President Obama launched the National Travel and Tourism Strategy, charting a new course toward making America a more attractive and accessible destination than ever before. The Strategy sets a goal of drawing 100 million international visitors by 2021, which is expected to generate $250 billion annually in visitor spending by 2012. The strategy also encourages more Americans to travel within the United States. In 2013, international visitors spend $180.7 billion dollars on U.S. travel and tourism related goods and services.
How can Indian Country benefit from this booming industry?
As Indian gaming began to boom, gaming tribes began to think about how to draw their customers to their facilities. Soon magnificent facilities like the Tulalip Resort Casino and the Pueblo of Pojoaque’s Buffalo Thunder Resort sprang up. At the same time, a small tribal organization with a mission “to define, introduce, grow and sustain American Indian, Alaska Native and Native Hawaiian tourism that honors traditions and values” was steadily growing. Today, the American Indian Alaska Native Tourism Organization (“AIANTA”) is flourishing.
This week AIANTA was in D.C. in support of H.R. 3477, a bill “To enhance and integrate Native American tourism, empower Native American communities, increase coordination and collaboration between Federal tourism assets, and expand heritage and cultural tourism opportunities in the United States. ” This bill would authorize a MOU between AIANTA and the Department of Interior in consultation with the Department of Commerce to provide technical assistance to tribes and tribal organizations to participate fully in the tourism industry.
H.R. 3477 requires the Department of Interior and Department of Commerce to update their respective management plans and tourism initiatives to include a Native American Tourism Plan. The Native American Tourism Plans are to do the following:
(1) IN GENERAL.—The plans shall outline policy proposals—
(A) to improve travel and tourism data collection and analysis;
(B) to increase the integration, alignment, and utility of public records, publications, and Web sites maintained by Federal agencies;
(C) to create a better user experience for domestic travelers and international visitors;
(D) to align Federal agency Web sites and publications;
(E) to support national tourism goals;
(F) to identify agency programs that could be used to support tourism capacity building and help sustain tourism infrastructure in Native American communities;
(G) to develop innovative visitor portals for parks, landmarks, heritage and cultural sites, and assets that showcase and respect the diversity of the indigenous peoples of the United States;
(H) to share local Native American heritage through the development of bilingual interpretive and directional signage that could include or incorporate English and the local Native American language or languages; and
(I) to improve access to transportation programs related to Native American community capacity building for tourism and trade, including transportation planning for programs related to visitor enhancement and safety.
If you or your tribe is interested in this legislation or want to learn more, you can contact the House Natural Resources Subcommittee on Indian, Insular and Alaska Native Affairs. A link to the hearing on H.R. 3744 is here.
Tell our own story and protect our sacred sites.
For two hundred years, American Indian, Alaska Native and Native Hawaiian history has been told by the “conquerors” and not by us. Tourism gives us the opportunity to tell our own story in our own words in our own places. The Desert View Tribal Heritage Project is a great example of this. Groups including AIANTA and the Grand Canyon’s ItAC, established in 2013, composed of representatives from the park’s 11 Traditionally Associated Tribes (Hopi, Navajo, Zuni, Havasupai, Hualapai, Yavapai-Apache, and five bands of Southern Paiute represented by the Kaibab Paiute) collaborate with the NPS on issues that affect each of the tribes and the park including working on programs such as youth development, tribal tourism opportunities, and cultural demonstrations. Today, Desert View represents the physical and cultural gateway from Grand Canyon National Park to the Navajo and Hopi reservations.
A signature project for next year’s National Park Service Centennial, the revival of Desert View as a cultural heritage site will provide opportunities for the public to connect with Grand Canyon’s Traditionally Associated Tribes. This transformation also ensures that future generations of tribal members and visitors will have an opportunity to make and share meaningful experiences and stories. “This project re-envisions how visitors experience Desert View and the entire park and will lead us and the NPS into the next century. We are grateful for the support of ArtPlace America and the American Indian Alaska Native Tourism Association and the hard work of our Inter-tribal Advisory Council,” said Park Superintendent Dave Uberuaga.
This is just an example of what can be accomplished for the benefit not only of Native People but those tourists who would like to learn more about us and the places we live. I know that there is some hesitation about inviting non-Native people into our homelands but there are ways to do it that keep our communities safe while participating in a booming industry in a culturally appropriate way. Done right, tourism can be not only an economic development opportunity but an education opportunity and a means to protecting our cultural resources. Big thanks to AIANTA for leading the way!
Media and industry began shouting “Marijuana is legal in Indian Country!” from the rooftops. Tribal leaders were swarmed by tribal members demanding that marijuana be immediately legalized. State and local jurisdictions were worried about the impact of legalization on their jurisdictions. Some tribes immediately announced their intent to open large marijuana operations; other tribes issued strong statements against legalization, and lawyers all started scratching our heads.
As the debris settles, we look back at a year with several tribes attempting to enter into the industry. The federal government either closed down their operations or the tribes shut down their operations themselves. Two tribes successfully opened two retail shops.
The truth is that there is just too much uncertainty in the law for most tribes to confidently enter into the industry. But there does seem to be economic opportunity available and some tribes will be able to take advantage of that.
Here are my highlights from 2015:
- Development of the National Indian Cannabis Coalition. In February 2015, Jeff Doctor (Seneca) announced the establishment of NICC. NICC’s mission is to educate tribal leaders and elected officials on the emerging regulated cannabis industry while advocating for parity on behalf of Indian Country. NICC has been on the forefront of cannabis policy development in Indian Country, speaking at conferences around the country and weighing in on policy development at the Congressional and Administrative level.
- Development of a draft tribal marijuana bill. Congress has been paying attention to the concern in Indian Country that dabbling in the cannabis industry could lead to the termination of federal grants or other funding. House representatives drafted a bill that would clarify that tribes would not lose federal funding if they were engaged in economic development in the cannabis industry.
- HHS Secretary Burwell promised that tribes engaged in the cannabis industry will not lose their federal funding so long as they do not use HHS funds in those endeavors. (Now we need more such statement from other Agencies).
- Suquamish and Squaxin Island open and operate (successfully) two retail marijuana stores on their reservations. While other tribes were being raided, these tribes in Washington were quietly negotiating with the State and preparing to open their retail stores. Now I hear that several other tribes are in negotiations with Washington State to do the same.
What should we look for in 2016?
- Ruling in Menominee v. DEA and DOJ determining whether a tribal college is an “institute of higher learning” for the purposes of growing hemp under the Farm Bill.
- Congressional legislation protecting federal funding for tribes engaged in the cannabis industry.
- Development of a single federal policy regarding legalization of cannabis in Indian Country.
- Development of tribal cannabis businesses in states with some form of legalization.
There have been a couple tribes who have tried unsuccessfully to open marijuana operations within states that have no form of legalized marijuana. The logistics of ‘legalization on an island’ are at this point, in my opinion, too difficult to overcome. Instead, the focus should be on developments within states with some form of marijuana legalization. I understand that this means that tribes in restrictive states without other forms of economic development will lag behind others – but cannabis remains a schedule 1 Controlled Substance carrying severe penalties for those convicted of possession, intent to manufacture or distribute. It is just not worth the risk unless you KNOW your intergovernmental agreements are strong and protect tribal people and tribal investments.
We are still in the infancy of this industry, both in Indian Country and the “outside” world. Growing pains are inevitable. What is both encouraging and frightening is that for the first time since gaming, non-Native businesses are coming to Indian Country. A word of caution – be careful who you work with – the sharks are circling and while they can leave and change their name, we are tribal people and members of our tribal nations from the beginning of time to the end of time and these businesses will remain part of our tribal history forever. Make sure that history tells a good story of developing cutting edge industries in a good way.
With Respect and Hope for a Successful Year,
On October 23, 2015 federal DEA agents raided a Menominee hemp grow destroying approximately 30,000 plants. While the Tribe is claiming that the plants were all industrial hemp containing less than 3% THC, the DEA alleges that the plants were in fact marijuana. The Tribe has promised to bring the matter to federal court.
The recent federal and state law enforcement activity on federal land calls into question the true efficacy of the “Wilkinson Memo” that was widely advertised by industry, some legal advocates, and some tribes as “legalizing” cannabis on tribal land. These recent raids illustrate that if anything, the Wilkinson Memo simply opened a can of worms.
As I have been saying since the release of the DOJ Policy Guidance aka Wilkinson Memo, there are very real legal hurdles that need to be overcome before a tribe should invest resources in developing an operation or allow industry access to tribal lands. It appears that the Menominee Tribe was in contact with the state and federal authorities regarding the grow which begs the question – what must a tribe do in order to participate in this emerging industry?
Menominee’s location in a state without any legalized marijuana is problematic. And if the plants are in fact marijuana plants and not hemp, then the tribe and/or its partner took a very risky gamble. If the plants are truly hemp, then it is clear that the feds are not going to allow tribes to participate in an agricultural project for a crop that, according to a Congressional Research Service report, has the potential to earn the second highest revenue per acre (after tobacco).
I’ve been preaching the merits of hemp cultivation as a major economic opportunity for tribes. But it is not an opportunity to “get cute” and mix marijuana plants into the grow. Stay clean and I believe that investment could be very lucrative provided you are doing so within the framework provided by the 2014 Farm Bill.
At this point, it is clear that unless a tribe is located in a state with some form of legalized marijuana, engaging in this industry (even hemp) is very risky. And for tribes even in states with legalized medicinal or recreational marijuana, careful evaluation and coordination of the state regulations is a necessity. Yes, I know, we are sovereign governments but we can be both sovereign and smart… particularly when the risks are so high.
An October 12 LexBlog article examines the possible implications of the federal government giving Native American Tribes the right to legalize, cultivate and distribute marijuana on their lands. We have seen the economic benefits provided by the Indian Gaming Regulatory Act of 1988 (IGRA), which is underscored by tribal gaming’s 116 percent revenue growth between 2001 and 2013. While I am skeptical that marijuana alone will bring the same level of economic growth as gaming, it is becoming clear that there is some economic benefit to be derived if only from the tax collected.
In the article, I briefly described what IGRA has meant for tribes and what it has allowed them to accomplish in the past three decades:
“With the gaming agreement [in 1988] came the ability of tribes to fund their own government and hire lawyers that weren’t legal aid attorney, and that 30 years have really yielded a boom in economic development and access to financial independence. Litigation takes a lot of time and money…[and now] there’s this ability for tribes to look at their legal situation and do something about it.”
We recently saw the signing of the Suquamish Marijuana Compact—the first tribal marijuana compact in the nation. While I like the tried-and-true compact model, I also believe that if tribes get involved in legalization efforts early on in the process in their states, some of the concessions made by the Washington tribes will not need to be replicated elsewhere. For example, by the time the Tribal DOJ policy guidance was released, Washington State had already locked down the recreational marijuana industry and allocated all the licenses. A tribe trying to get into the market would have to agree to State enforcement – which was a non-starter.
House Bill 2000 allows the tribes to participate in the State industry while preserving tribal sovereignty BUT Tribes utilizing these compacts must agree to a tax rate equal to the State. For obvious reasons, industry was concerned that Tribes would do what we have done with gas and cigarettes and impose a smaller tax on the products sold thus creating incentive for customers to come to the reservation in order save money. I do not think this has to be the case in other jurisdictions so long as Tribes participate in the legislative and rulemaking process from the beginning.
The Suquamish Tribe attempted to break the internet on Friday with the announcement that the Tribe and State of Washington signed the first Marijuana Compact. News about the Squaxin Island-Washington Marijuana Compact followed shortly after. I may be slightly biased, but the tribes in the Northwest continue to demonstrate a willingness to work collaboratively with their respective states while requiring the state governments to acknowledge and respect tribal sovereignty.
After legalization of marijuana in Washington State, the State quickly locked down the fledgling industry by issuing a limited number of licenses and establishing a strict canopy limit. HB 2000 provides a mechanism for tribes to participate in the industry without their non-tribal partners risking their state-issued license by entering into a compact regarding marijuana issues. The Suquamish MJ Compact was the first such compact.
What does a MJ compact mean for the Tribe?
The Compacts do several things – First, the Tribe can open retail stores as well as processing and production centers. Arguably, this was already allowable under the Wilkinson Memo. However, Section V.E specifically allows the Tribe to purchase marijuana products from or sell marijuana products to State Licensees without any potential citation, fine or adverse licensing action against any State License as a result of that transaction.
Second, the State agreed to withhold granting a license to any person or business applying for a license within Suquamish territory without the express written permission of the Tribe.
Third, while the Tribe cannot impose a tax that is less than the current State tax (which might create a business advantage to Tribal MJ businesses), the Tribe will nonetheless receive 100% of any tax imposed. The Tribe agreed in the MJ Compact to only use the tax funds for “Essential Tribal Services”, which are defined as “services provided by the Tribe including, but not limited to, administration, public facilities, fire, police, health, education, elder care, social services, sewer, water, environmental and land use, transportation, utility services, community development, and economic development.“
Fourth, the Tribe can use its own traceability system and is not required to only use the State’s and there is a specific tax exemption for transactions involving medical marijuana used in the course of medical treatments at a medical facility owned and operated by the Tribe.
What do these MJ Compacts means for Indian Country?
Besides providing a template for how a Tribe might participate in a state-regulated MJ industry, I believe this Compact serves as another example of how Tribes and States can work collaboratively together to provide economic opportunities for both governments. Too often, we see States fighting Tribes. While Washington is not yet perfect, State politicians must acknowledge the importance of the Native vote and deal with Tribes on a government-to-government basis.
I watched the movie “Selma” recently on my long flight from Greece. I was inspired yet again by the incomparable Rev. Dr. Martin Luther King Jr. to continue encouraging all our tribal members to vote! It may seem tedious, but change is never easy and always takes longer than we’d like. As we vote in our local elections and that influence filters up, we will see more States, like Washington, to begin to work together WITH us instead of against us.
When I started this blog, I didn’t think I’d end up talking about voting… but, I think this is where it was supposed to end up — climbing to our mountaintop!
Last week, a federal court held that the Oneida Wisconsin Tribe was immune from a class action lawsuit for printing confidential information on credit card receipts in violation of the Fair and Accurate Credit Transaction Act. While I completely agree with the legal outcome, I wish that it had not come to this.
In an earlier blog post, I wrote about the need for tribes and their enterprises to be developing robust comprehensive data privacy and consumer protection laws. We all know how invasive and damaging identity theft can be and as Indian Country continues to draw more non-Native customers, we must provide these basic protections.
The tribe does have a torts claims ordinance and the customer could have sued the tribe for damages under that framework — provided they were given notice of that process. Unfortunately, tribes are often reluctant to publish their laws so that the public can view them . As a result, consumers simply sue in state or federal court and blow the timeframes provided in the torts ordinance. Thankfully, Oneida does post their Torts Claim ordinance on their website. Had the plantiffs’ attorneys pursued this avenue, they would have resolved the issue for their clients without the significant litigation expense already incurred.
Tribes must begin to publish all our codes and regulations online.
Yes, some of our codes need work, but so do many of the states and local municipalities’ codes. We should be investing the resources to update and refine our codes rather than hiding them until some bad decision is made as a direct result of poorly written or simply outdated law and outraged tribal members are beating down tribal council’s door for legislative changes. Until then, develop a policy to ensure that all your employees know to provide notice of the torts process anytime there is an alleged injury. It is really just good customer service.
Finally, as part of these comprehensive consumer protection policies, every tribe should have insurance coverage to cover these types of claims. And the insurance company must NOT be allowed to raise sovereign immunity when there has been legitimate harm caused by our action or inaction. If you are unsure about your policies, contact someone who does tribal insurance like the friendly folks at Brown & Brown Brokerage or Tribal First insurance.
Maybe I’m channeling Henny Penny, but we cannot expect to raise sovereign immunity every time a patron is harmed and then be surprised and outraged when the Courts or Congress come down on us. We have seen in the context of payday lending that if tribal enterprises are unable to protect their customers, then the federal government will intervene on the customers behalf. In the instant litigation, the plaintiffs’ attorneys have committed to appealing the decision that will cost the tribe valuable resources.
Bottom line? Let’s get it together Indian Country! We are operating in a global society with international customers. Provide them basic consumer protections and recourse if they are harmed, and we will only continue to grow.
P.S. Does this mean I’ve “discovered” Greece?
Working with Law Seminars International, I’ve helped put together a program on how Tribes can effectively use their commercial operations in a way that preserves their tribal sovereignty with respect to Internet consumer protection regulations. The program will take place on August 27th and 28th in Seattle. Every day, Tribes gather personally identifiable information and have a responsibility to protect this information and the digital networks over which it flows. This very week in fact, a tribal casino reported having been hacked and losing 85,000 credit card numbers. Every tribal leader, tribal management, attorney and IT professional should understand what it means to operate a business in this new e-era.
By attending this program, Tribal leaders, their attorneys, and IT professionals will gain the knowledge and understanding necessary to begin to undertake essential steps to safeguarding their sovereignty and financial resources.
For registration and information: Tribal Online Consumer Protection, Information Security, and Privacy.
I look forward to seeing you there!
Well, the gold rush is on in Indian Country. Cannabis is being touted as the next “green buffalo” and the cure to all our economic woes. (BTW – I wish we would really stop using the “buffalo” analogy, but I digress). While I agree that there could be economic benefit to participating in the industry in some form (see my earlier post Economic Development), my swan-dive into tribal cannabis has left me scratching my head as to how tribes can participate in this pseudo-legal industry as anything more than a governmental body.
What in the world am I talking about!?
Tribes are heavily reliant on federal funding for their governments. Marijuana is illegal. None of the memos released by the Department of Justice change the law. Every contract and grant and self-governance compact that is executed with the federal government states that the recipient of federal funding will comply with federal law. Explicit or implicit in that agreement is that failure to comply with federal law could result in the loss of those funds. In other words, a tribe’s participation in the cannabis industry could result in the loss of their federal funding.
Whenever I mention that little factoid to people, their response is inevitably, “Well states are doing it, so why not tribes?” Here’s the thing – states are actually NOT doing it.
States are not participating in the cannabis industry as commercial entities. Instead, they are performing the governmental functions of licensing, regulating, enforcing and taxing. I think that tribes engaged in legalizing and then performing those governmental functions do not risk their federal funding the same way they are if they engage as an industry participant.
Is there a way around that? Well, there might be.
I was reading an article about Veterans Affairs and its interaction with veterans suffering from PTSD using marijuana and discovered VHA Directive 2011-004 “Access To Clinical Programs For Veterans Participating In State-Approved Marijuana Programs.” This Directive clearly states that the VA cannot terminate a veteran’s benefits if it is discovered that they are using medicinal marijuana in states that have legalized medicinal marijuana use. I will repeat – a federal agency has issued a directive forbidding the termination of federal benefits to a person using “legal” medicinal marijuana.
Having worked in DC off and on my entire career, I know that the whims of politics and policy can change quickly (or slowly depending on what you are looking for). But, I do think that tribes could use this Directive as precedent to seek a similar directive from federal agencies such as the Small Business Administration, Bureau of Indian Affairs, Health and Human Services, Department of Agriculture and so on.
This industry is still new and policy is uncertain. For clarity’s sake, those in Indian Country looking to participate in the industry need to be working Congress and the Administration for better guidance. I believe this Directive provides valuable precedent for tribes seeking guidance from federal agencies.
Warning Regarding Federal Law: The possession, distribution, and manufacturing of marijuana is illegal under federal law, regardless of state law which may, in some jurisdictions, decriminalize such activity under certain circumstances. Federal penalties for violating the federal Controlled Substances Act (the “CSA”) are serious and, depending on the quantity of marijuana involved, can include criminal penalties of up to 20 years in prison and/or a fine of up to $2,000,000. 21 U.S.C. § 841. The penalties increase if the sale or possession with intent occurs within 1,000 feet of a school, university, playground, or public housing facility. 21 U.S.C. § 860. In addition, the federal government may seize, and seek the civil forfeiture of, the real or personal property used to facilitate the sale of marijuana as well as the money or other proceeds from the sale. 21 U.S.C. § 881. Although the U.S. Department of Justice has noted that an effective state regulatory system, and compliance with such a system, should be considered in the exercise of investigative and prosecutorial discretion, its authority to prosecute violations of the CSA is not diminished by the passage of state laws which may permit such activity. Indeed, due to the federal government’s jurisdiction over interstate commerce, when businesses provide services to marijuana producers, processors or distributors located in multiple states, they potentially face a higher level of scrutiny from federal authorities than do their customers with local operations.