Happy New Year!

Friends,

Yesterday President Obama issued “A Renewed Era of Federal-Tribal Relations”, a progress report on the activity his Administration undertook during his eight years.  During his tenure, President Obama met annually with tribal leaders at the White House – this has never happened before.  He signed Executive Order 13,647 on June 26, 2013 creating the White House Council on Native American Affairs whose purpose is to bring together Federal Departments and Agencies to break down the siloes in order to better serve Indian Country.

The report “intends to set a baseline of progress for Tribal nations to reference in their ongoing work with the federal government” and “shares priorities that the WHCNAA will continue to work on as a result of Tribal leaders’ recommendations.”  The WHCNAA is a product of an Executive Order which could be rescinded by the incoming President as could  Executive Order 13, 175 on Tribal Consultation.  These Executive Order’s have been critical to achieving the successes we have seen under President Obama.  However, it is incumbent on us to remain vigilant in continuing to advocate for the type of progress we saw under President Obama.  In 16 days, we will have a completely new Administration with new people to educate while advocating on behalf of our communities.

I attended the President-Elect’s Tribal Listening Session in Washington, D.C. before Christmas and was encouraged by the number of tribal leaders and representatives present at the meeting.  But we cannot afford to lose any  momentum gained under President Obama.  This means being present and vocal in Washington D.C.

2016 was a real roller-coaster.  Here’s hoping 2017 is smooth sailing….

In peace with hope for good year,

L

In my capacity as general counsel for the National Indian Cannabis Coalition, I (and the rest of the industry) have been closely tracking the President-Elect’s Cabinet nominations.  Cannabis legalization is perched precariously on the two prongs of (1) states’ rights; and (2) the Department of Justice’s policy position allowing United States district attorneys to decline to enforce cannabis-related violations of the Controlled Substances Act.  Congress doubled down by passing legislation withholding funding for the prosecution of marijuana crimes when the activity is legal under state law.

Those thinking about this issue and trying to gaze into the crystal ball to see past January 19, 2017 generally think that the costs associated with infringing on a state’s right to make its own laws by federal enforcement of federal marijuana laws may be to high to be realistic.  The fact that over half the states have some form of legalized marijuana, the number of potential unhappy constituents, loss of tax revenue from a $7 billion dollar industry and number of jobs lost if the marijuana violations were prosecuted also creates a political reality that would be difficult to overcome.

However, the DOJ’s policy is just that – a policy, not a law.  It can be changed with the stroke of an Attorney General Session’s pen.  And while I believe the states’ rights argument may protect the states from federal enforcement, I am concerned that same argument might not apply to tribes.

The Wilkinson Memo allows a United States District Attorney the discretion to determine whether to expend resources prosecuting marijuana violations in Indian Country located within their district.  Indian Country is federal land.  Given his previous statements on marijuana, I can see how an Attorney General Sessions might leave the states legalization alone while taking a hard line position on enforcement and prosecution of marijuana violations on all federal land, including Indian Country.  After all, “good people do not smoke marijuana”.  

For now, we do not know whether the Senate will even confirm Sen. Sessions or if this will be an issue that the Trump Administration will care anything about.  What is clear, however, is that for there to be stability in the industry and for tribes to be able to participate in this booming economic development opportunity without fear of losing their investment or other federal funding, Congress will need to act.

“trying to see the future”

Lael

If you are reading this blog from time to time, then likely you know about the protest against the Dakota Access Pipeline that has been happening on the Standing Rock Reservation in North Dakota.  Native America has gathered to support our cousins at Standing Rock and today, when the Court turned its efficient back on Indian Country, the Obama Administration stood with us.

In a Joint Statement from the Department of Interior, Department of Justice and Department of the Army issued mere minutes after the release of the Court’s opinion,  the Obama Administration put a halt to the construction near the reservation and asked the oil company to voluntarily cease construction on the pipeline within 20 miles of Lake Oahe!  Then, they said:

“Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.  Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions:  (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals.”

Continuing, the Statement says,

“In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites.  It is now incumbent on all of us to develop a path forward that serves the broadest public interest.”

And all I can say is “Wow”.  Just “Wow”.

I was an employee of the Obama Administration and I cannot over-emphasize what a phenomenal effort this must have been by our friends and family working so hard on our behalf inside the government.  It can take weeks to get an even seemingly “simple” document approved by one Agency, let alone three.  And make no mistake, the POTUS himself had to approve this decision.

We have work to do still, no doubt.  We cannot relax.  We must remain vigilant.  Google’s dictionary defines vigilant as “keeping careful watch for possible danger or difficulties” and offers synonyms such as “watchful”, “observant”, “alert”, and my personal favorite, “hawk-eyed.”  There will be a ton of work to do.  Consultation will move forward as mandated by Executive Order 13, 175 which provides for meaningful consultation with Indian Tribes.  But this requires us, you and I, to be as vocal as we have been while on the front lines of the protest throughout the process.  For my tips on how to effectively “consult” check my blog “The Art of Consultation.”

Indian Country knows that the judicial system is not with us.  Some of you readers may not know that in 2001, the Native American Rights Fund started the Supreme Court Project whose purpose is to strengthen tribal advocacy before the U.S. Supreme Court by developing new litigation strategies and coordinating tribal legal resources, and to ultimately improve the win-loss record of Indian tribes. The Project is staffed by attorneys with the Native American Rights Fund  and the National Congress of American Indians (NCAI) and consists of a Working Group of over 200 attorneys and academics from around the nation who specialize in Indian law and other areas of law that impact Indian cases.

As I sit here in D.C.,  I am inspired by the work of the Standing Rock people, the protesters, the legal teams, and our friends in the Obama Administration.

Thank you, thank you very much.

Mni Wiconi. Water is Life.

Lael Echo-Hawk

 

The 8th Annual White House Tribal Nations Conference is coming up soon!  If you are interested in attending the Conference and surrounding events, it is critical to make your hotel reservations NOW!  On Saturday, September 24 is the opening of the National Museum of  African American Art and Culture on the Mall and it will be a huge event with President  Obama speaking at the opening.   As with the opening of the NMAI, there will be several days of events.    Also on Saturday the 24th is the National Book Festival at the Convention Center which draws about 100,000 people although that might not affect hotel reservations.  These events will cause travel overlap and shortage of in-town hotel rooms.

The 8th Annual White House Tribal Nations Conference will be held on September 26-27, 2016 in Washington DC. This will be President Obama’s eighth Tribal Nations Conference, bringing tribal leaders from across the country to interact directly with high-level federal government officials and members of the White House Council on Native American Affairs.

NCAI will co-host a Tribal Leaders Preparatory Meeting on Sunday, September 25, 2016 from 10:00am-5:00pm. The meeting will be at the Washington Plaza Hotel located at 10 Thomas Cir, NW, Washington, DC 20005.  There will also be a reception following the Conference.

For questions about the White House Tribal Nations Conference itself please go to: www.whitehouse.gov/tribalnationsconference 

For a recap of last year’s meeting and to review the 2015 tribal leader’s briefing book, please visit the 2015 Tribal Leaders Conference Event Page on NCAI.org.

Let us know if we can assist,

L

Hi,

LexBlog interviewed me the other day (in a park, which I forgot about until she mentioned it in her blog!) about how I got started blogging and why I continue.  So, if you’d like to hear the whole story, check out this blog by Lexblog on the origins of the Smoke Signals Indian Law Blog.

Blogging,
L

P.S.  That’s seven references to “blogs” in a two sentences.  I’m sure it’s a record! (eight counting the one in this P.S.)

Hey Team,

Here is an update from our firm on some recent Indian Health Service activity.  Check it out!

On July 29, 2016, the IHS announced that it will extend the comment period and host additional tribal consultation sessions for three proposed rules and draft policies.

First, the IHS has extended the submission deadline for comments on the draft policy statement to expand the Community Health Aide program (CHAP), which would expand the use of community health aides, including dental health aide therapists, at IHS facilities nationwide.  Comments must be received by 5:00pm on October 27, 2016, should refer to “IHS Expansion of CHAP Draft Policy Statement Consultation, and may be submitted electronically at consultation@ihs.gov.  Tribal Leader letter here.

Second, the IHS has extended the submission deadline for comments on the draft Circular addressing the purchase of health care coverage, which is commonly referred to as Tribal Premium Sponsorship.  Comments must be received by 5:00pm on October 31, 2016, and may be submitted electronically at consultation@ihs.gov.  IHS will also hold two in-person consultation sessions on September 19 and October 9, 2016.  Tribal Leader letter here.  Draft Circular here.

Third, the IHS announced that it will engage in additional tribal consultations on the proposed rule for the Catastrophic Health Emergency Fund (CHEF), which addresses the extraordinary medical costs associated with treating victims of disasters or severe illnesses within IHS and tribal facilities. Tribal Leader letter here.

If you need more info, contact my friends Elliott Milhollin or Geoff Strommer.

With hope for happy healthy communities,

Lael

Friends,

It is a big week in the City of Brotherly Love!  Several of our attorneys are attending the Democratic National Convention and taking notes.  Senator Tester (D-MT), Senatory Heinrich (D-NM), Congresswoman McCollum (D-MN), Co-Chair of Native American Caucus, and Congresswoman Torres (D-CA) attended a reception last night co-sponsored by Hobbs Straus.

Let us know if you’d like a recap of the events.  #demsinphilly

On to Day 2!

L

On June 22, 2016, the President signed HR 812 as PL 114-178, the Indian Trust Asset Reform Act (Act). The Act reaffirms the responsibility of the United States to Indian tribes; authorizes a demonstration project for tribes to voluntarily negotiate with the Secretary of the Interior to manage their own trust assets; creates the option for the Secretary to establish an Under Secretary for Indian Affairs; and sets up a process to terminate the Office of the Special Trustee.

In other words, this is a VERY big deal.  There have been numerous lawsuits filed against the federal government for failing to appropriately manage tribal trust assets and, in the spirit of self-determination, this legislation begins to hand some of that management back over to tribes.  In a Congress bogged down by election partisan politics, Indian Country continues to chip away at issues important to us and find some success.

HR 812 was introduced by Representatives Simpson (R-ID); Cole (R-OK); and Heck (D-WA). Companion legislation was introduced by Senator Crapo (R-ID). A copy of HR 812, as presented to the President for signature, is here: https://www.gpo.gov/fdsys/pkg/BILLS-114hr812enr/pdf/BILLS-114hr812enr.pdf

Read more from our General Memorandum here

Happy Tuesday!
Lael

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,
Lael