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  The WHCNAA is a product of an Executive Order which could be rescinded by the incoming President as could  Executive Order 13, 175 on Tribal Consultation.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

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

policy photoWell, 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.

Create New Business

I’m at the Federal Bar Association’s 40th Annual Federal Indian Law Conference occurring this week. Hordes of “ndn” lawyers show up with our braids glistening and cowboy boots polished to a high sheen. NNABA and NNALSA hold their annual meetings and hundreds of Indian law practitioners cram into conference rooms to talk story and commiserate about the Supreme Court’s latest jabs at the fundamental principles of Indian law that guide our practice.

I was asked to present on Economic Development and Entrepreneurship in Indian Country. After googling how to spell “entrepreneurship,” I started to think about what economic development and entrepreneurship mean in Indian Country, and more to the point, how Indian law practitioners can assist in its development.

If you follow this blog, you know that for the past several months, I’ve been spending an inordinate amount of time talking about Marijuana in Indian Country. What is particularly interesting about the cannabis issue is that for the first time since the gaming boom, Indian Country is being bombarded by commercial industry.

I’m sorry, WHAAAAAT???? Wasn’t it just six months ago that we were bemoaning the fact that it is nearly impossible to coax businesses into Indian Country?

A 2011 Forbes article entitled, Why Are Indian Reservations So Poor? A Look At The Bottom 1% said, “Companies and investors are often reluctant to do business on reservations … because getting contracts enforced under tribal law can be iffy. Indian nations can be small and issues don’t come up that often, so commercial codes aren’t well-developed and precedents are lacking. And Indian defendants have a home court advantage.” As a tribal attorney I can’t tell you how many times I would talk to a vendor interested in doing business with the gaming operation and hear them say that tribal courts cannot be trusted. And yet today, I’m fielding non-stop emails and calls from non-Indian businesses interested in both learning about their “Indian grandmother princess” heritage and asking me to facilitate meetings with tribes about the opportunities in the Cannabis industry.

What has changed?

Quick answer? Not a single thing – except that this “emerging industry” is seeing those issues that were formerly viewed as a detriment as a positive. Sovereign immunity is now viewed as an asset, gaps in tribal legislation are viewed as an opportunity to develop cutting edge legislation outside of state politics, tribal history of co-regulation with the federal government is a benefit to ensuring federal cooperation and non-enforcement of federal law. Marijuana is, after all, still an illegal substance.

In other words, the cannabis industry is viewing partnerships with tribes as a positive not a negative.

The question that is plaguing me is how to translate this remarkable change of perception of Indian Country into bringing other businesses out into Indian Country. Cities like Seattle, San Jose, and Denver have developed strong reputations as good “start-up” cities. They did this by creating a favorable business environment and supplying resources to the businesses that either start or move there. They provide access to venture capital, business friendly tax structures, access to real estate, beneficial zoning and permitting processes, good infrastructure and access to universities and research centers.

Tribes can do this too.  Indian Country has a significant amount of latitude when drafting their ordinances and regulations and can create a business friendly legal environment that both attracts and cultivates business.  And even beyond that, tribes can leverage their existing relationships with universities, insurance companies, bonding, financial services, vendors, and access to legal counsel to assist their tribal members to develop their own businesses. For example, tribes can develop relationships with colleges and universities to provide on reservation or online business classes to their tribal members. Once a tribal member reaches a point of opening their own company, tribes can use their own legal counsel to provide the tribal member with assistance incorporating the business and reviewing contracts and proposals.

Economic development and entrepreneurship in Indian Country is possible, but requires creativity, innovation and good legal minds to implement that agenda.

Loving my job,
L

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.

I Stock photo - canoePicture it – February 24, 2015, Washington DC and NCAI Winter Session and NACA Congressional Outreach Summit are in full swing.  Native people from Kotzebue to Ft. Lauderdale, Florida have descended on the most powerful city in the world and are combing the halls of Congress and the Departments of Interior, Commerce and Labor. Many issues are being discussed – health care, marijuana, dental aides in Indian Country, integration of marijuana into our health care systems, taxes, access to broadband, development of a national emergency response system, the new BIA ICW guidelines, access to housing, homeland security, federal acknowledgement, Alaska land-into-trust rule, the Native 8a program, President Cladoosby’s reservation and the smelly plume of doom, just to name a few.

There is a lot going on. Let’s just say the Capital Hilton vacuums may never be the same. (As many Hoovers as Native hair has put to rest, we really ought to invest in vacuum companies…)

But in the midst of all this seeming chaos, there is a sense of purpose. A sense that (to borrow from my Coast Salish relatives) “we are all paddling together in the same canoe”.

I think this sense of community and purpose is a gift. As an advisor to tribes in all facets of their governments and business, my practice has run from gaming to child welfare, drafting tribal court rules, real estate, business development, marijuana, and on and on. I don’t think my experience is the exception, rather, the rule.

Indian Country is incredibly diverse. But no matter how many paddles we have on the canoe or how many different hands pull them, we are all paddling together to make life better for our community.

Shout out to all those tribal leaders freezing in their jeans and slipping on the ice in cowboy boots as they charge the Hill to ensure we are never forgotten. Hands up to all their staff and the staff of these organizations listed on this site who track these important issues and let us know when we need to act. Prayers for those warriors embedded in the enemy camp who work that side on our behalf.

Keep Paddling,

Lael

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.

On August 21, 2014, the Washington State Supreme Court ruled that the State court has jurisdiction over civil cases arising on Indian reservations between a tribal enterprise and a non-tribal vendor.  In Outsource Serv. Mgmt., LLC v. Nooksack Business Corporation, the Nooksack Business Corporation, and entity of the tribal government, signed an irrevocable limited waiver of sovereign immunity which among other things, consented to be sued in “any court of general jurisdiction in the State.” The Court did not buy the Tribe’s argument that because the matter arose on the reservation and was between the Tribe and a non-tribal vendor, the waiver was irrelevant and exertion of State Court jurisdiction over the matter would infringe on tribal sovereignty.

Practice Tip:  Make sure your Tribal clients understand that if they sign a waiver consenting to suit then courts will honor that provision even if the dispute arose on tribal land and was between the Tribe and/or its business entity and a non-tribal vendor. The Montana “consensual relationship” exception will not save you.

In fact, the Court said that “ignoring the tribe’s decision to waive sovereign immunity and consent to state court jurisdiction would infringe on the tribe’s right to make those decisions for itself.”  The dissent agrees that there was an effective waiver, but disputes that the waiver by itself gives the State courts jurisdiction over the Tribe.

Here’s the deal, tribal sovereignty is ability to make decisions for ourselves. Good or bad, advised or ill-advised – that is the whole point of sovereignty.  As trusted advisors to tribal governments, we need to be prepared to provide tribal councils with the pros, cons and potential outcomes for the decision so that they can make informed decisions.

Sovereign immunity is an established principle of jurisprudence that holds a sovereign cannot be sued without its consent and permission. Or in other words, “the King [or Chief] can do no wrong.” But the sovereign CAN waive that right.

The question I’ve been interested in lately is the mechanism by which a tribe can waive their sovereign immunity.

For a business, anyone with “apparent authority” from the outside vendor’s perspective who signs a contract can obligate the company to the terms of the contract even if that person was not authorized to sign the contract. But this is not true when dealing with a government, including tribal governments.

I’ve been looking at cases where a waiver of sovereign immunity was signed by Joe So-and-So in the Tribal finance department who signed a contract and the court has to grapple with whether a waiver included in that contract waiver was effective.

Case law is clear that in order to be effective, a tribal waiver of sovereign immunity must be explicit and should be strictly construed.  However, even when the tribal waiver is clear, it must be signed by a duly authorized tribal representative to be effective – even if this means the other party cannot enforce the terms of the contract.

Recommendation? Tribes should develop clear guidelines for how and when sovereign immunity can be waived.

  1. Draft an ordinance or resolution that clearly specifies how and when the Tribe’s sovereign immunity can be waived; and
  2. Diligently comply with that process. (And I do mean, Diligently!)

Tribal sovereignty is under attack. We dodged a bullet in Bay Mills (although the SCOTUS included some zingers in that opinion. Ex Parte Young anyone?) Indian Country must be fastidious about protecting this inherent right. There are many reasonable reasons, particularly in a business context to consider limited waivers of sovereign immunity, but understand that once it is waived, courts will respect that decision. We have to be smart, do good business, and by all means, protect our right as tribal governments to make our own decisions.

Questions? Ideas on how to protect our rights? Add your comment!

I was at karaoke last weekend for my sister’s birthday at our favorite local dive karaoke spot. Unbeknownst to us, it was a “Cowboys & Indians” theme, and you know the rest of the story.

At one point, I had to go pick up some guy’s sweaty beanie to which his “headdress” was pinned, off the floor where he threw it during his horrendous rendition of some country rock song. I know it wasn’t a real headdress, but isn’t that the point? When non-Natives appropriate Native people, they relegate “us” to something inferior – something less than human that can be easily discarded and forgotten.

As he was talking me down, my boyfriend said, “He just doesn’t know any better.” Hashtag. Blank-Stare. Personally, I am sick and tired of the excuses given to justify this racist garbage we are constantly exposed to, like the Washington Redskins, the “Sioux-per Drunk” t-shirts, Chief Wahoo, and on, and on, and on, and on, and on and ENOUGH ALREADY!!

So what can “we” do?

I heard my brilliant uncle, Walter Echo-Hawk give a talk recently about how the “doctrine of discovery” and notion of “plenary power” (bedrock principles of federal Indian law) are built upon the racist notions that the Native people of these United States were (and are) “savages.”  Justice Marshall, author of that famous opinion “Johnson v. M’Intosh, himself says “[t]he tribes of Indians inhabiting this country were fierce savages, whose occupation was war, whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness.”

“Houston, we have Plenary Power. Please feel free to dispose of the savages and their land at will. Over.”

And yet, as my uncle argues, we (i.e., Indian Country) continue to cite to this case and others like it as if it is the B-I-B-L-E.

Uncle Walter’s proposition goes something like this:  we need to mount an attack on this legal framework of statutes and common law that is built solidly on the principle that Native people are an inferior race, and which framework is diligently trying to annihilate us. And we should attack it using the principles of human rights found in the U.N. Declaration on the Rights of Indigenous Peoples. http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

I like it!  (And not just because I am related to him.)

Think about this, while we continue to work on eradicating Native mascots, stereotypes, blatantly racist t-shirts and fraternity party themes, shouldn’t we also be doing what the African American community did in the late 1800’s with Plessy v. Ferguson? That is, mount a strategic attack on the legal principles founded on the idea that another race is somehow inferior to another.  If we succeed at challenging those racist legal principles I have to believe these other issues (such as Native mascots) will begin to resolve themselves.

Maybe, if the Supreme Court of the United States of America says that Native people possess human rights too… the rest of the country will start to agree.

For a more in-depth discussion about this idea, check out Walter Echo-Hawk’s website and read his books “In the Courts of the Conqueror” and “In the Light of Justice”. http://www.walterechohawk.com/

Photo credit of John Wayne Painting belongs to Bunky Echohawk