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

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

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

Last week, the “Compassionate Access, Research Expansion, and Respect States Act of 2015” was introduced in the Senate by a bipartisan coalition of Senators.  The first of its kind in the Senate, this bill joins two other bills introduced in the House by Democratic Congressmen.

The CARES Act does the following:

  • Reschedules marijuana from Schedule I to Schedule II.  (This shift to Schedule II would mean federal regulatory recognition that marijuana has a high abuse potential, a currently medical use, and use of could lead to severe psychological or physical dependence).
  • Prohibit federal government from cracking down on medical marijuana operations that are operating in compliance with state law.
  • Allows hemp (less than .3% THC).
  • Allow financial institutions to provide financial services to state-legal cannabis businesses.
  • Authorizes the Attorney General to issue 3 licenses for the manufacture of marijuana and marijuana derivatives for research approved by the FDA.
  • Authorizes Veterans Affairs to authorize VA physicians and other health care providers to provided recommendations and opinions to veterans in States with legalized marijuana regarding participation in those State marijuana programs.

The word "Legislation" highlighted in greenThis bill reflects a significant policy shift in Congress with regard to marijuana.  Today, 23 states and Washington, DC allow medical marijuana and four states and Washington, DC have legalized the adult recreational use of marijuana.  In 2014, Colorado received $63M in tax revenue from the combined sale of wholesale, medicinal and recreational marijuana.  Arcview Market Research reports that legal marijuana grew 74% in 2014 from $1.5B to $2.7B and estimates $10.8B in national sales by 2019.

This “green rush” is beginning to have an effect on policymakers.

I have an issue, however.  The CARES Act is a good step forward, but leaves out an important demographic – Indian Country.

If Indian Country truly wants to be treated like states with regard to marijuana, then we need to be included in the definition of “State” in the Act.  We also need to ensure that Indian Health Services physicians and health care providers can provide recommendations and opinions regarding marijuana programs to IHS beneficiaries in States or on reservations with legalized marijuana.

Action is required to make this happen.  Indian Country has a voice, and it is important to be involved at the beginning of this process.  Here are links to the sponsors of the Act –  Senators Booker, Paul and Gillibrand. If this issue is important to you or your community, you must weigh in.

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.

Miss the webinar?  That’s OK, click here to view it online.  Slides here and FINCEN memo here.

Bottom line – Tribes need to consider their options, make a decision, and take action to codify that decision into law.  Feel free to reach out to us if you have questions.

Lael, Tracie and Stephanie

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.

Please join us for the Tribes and Marijuana . . . Beginning the Conversation webinar on Wednesday, January 14, 10:00 am – 12:00 pm PST.  Please see agenda below.

Registration is available at https://attendee.gotowebinar.com/register/4583306887053602561

OverviewThe Department of Justice’s recent memo regarding enforcement of federal marijuana laws in Indian Country presents both challenges and opportunities for tribes.  This webinar is designed to assist tribes navigate the issue by  providing a summary of legal developments and an overview of important issues that should be considered before making a decision to either prohibit or allow marijuana in Indian Country.  The webinar will also discuss steps your Tribe can take to implement the decision while ensuring public safety concerns are met.

Speakers: 
Lael Echo-Hawk
, Attorney, Garvey Schubert Barer
Tracie Stevens
, President, Coast Salish Consulting
Stephanie Boehl
, Attorney, Garvey Schubert Barer

AGENDA
Introduction
Recent history of marijuana legalization

Legalization of marijuana generally across United States
Development of DOJ’s enforcement policy, including Aug 2013 Cole Memo
Recent Congressional action
Case Study – Legalization and regulation in Washington State
Medicinal v recreational
Initiative 502 regulatory framework
Issues/challenges
What does this mean for my Tribe?
What does the DOJ memo say, and not say?
Benefits/Negative impacts of legalization of marijuana
Societal impacts
Additional revenue (tax source, revenue from sales/participation)
What could legalization look like for my Tribe?
Who will have jurisdiction to enforce prohibition or legalization of marijuana?
What steps should my Tribe take?
Talk to the U.S. Attorney for your District.
Carefully consider all options before making the decision to prohibit or allow marijuana on your reservation.
Make an affirmative decision and memorialize in law.
Coordinate with all affected law enforcement agencies.
Learn from other jurisdictions facing this issue.
Wrap up & Questions

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.

In a memo made public yesterday, the United States Department of Justice revealed that US Attorneys around the country have been instructed to treat any Indian Nation choosing to legalize marijuana consistent with the priorities DOJ previously outlined for all states in the August 2013 Cole Memorandum.  By treating Indian Country the same as states, the DOJ is recognizing the inherent right of tribes to make their own decision whether to participate in the marijuana industry.  The Cole Memorandum indicated that DOJ would focus its resources on the following eight law enforcement priorities:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

For Tribes Considering Whether to Enter the Marijuana Industry
The decision to enter into the marijuana industry should not be taken lightly.  There are a number of policy issues to be evaluated, such as the impact on the tribal court system, Indian Child Welfare programs and employment.  Compliance with other federal grants for housing, foster care funding and 638 contracts also needs to be considered.  Robust regulatory systems must be implemented and enforced.  Tribes should also consider entering into MOU’s with the Department of Justice and the U.S. Attorney Office.

As in any other emerging area of law and industry, these first steps are the most important and should be carefully evaluated before taking action.

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.

 Today, the IRS issued Rev. Proc 2014-35 “Application of the General Welfare Exclusion to Indian Tribal Government Programs that Provide Benefits to Tribal Members”.  The Guidance recognizes the inherent sovereignty of Tribes and the importance of excluding certain benefits from individual tribal income tax.  The Final Guidance states:

The Service has consistently concluded, however, that certain payments made to or on behalf of individuals by governmental units under governmentally provided social benefit programs for the promotion of the general welfare are not included in a recipient’s gross income (general welfare exclusion).

To qualify under the general welfare exclusion, the payments must (1) be made pursuant to a governmental program, (2) be for the promotion of the general welfare (that is, based on need), and (3) not represent compensation for services.

Note however, these “[b]enefits qualify under the general welfare exclusion only if they are not lavish or extravagant.” “Lavish” and “extravagant” are to be determined by the facts and circumstances of each circumstance.

The Guidance lists the following types of government programs and services that may be excluded from Federal Income tax under the General Welfare Exclusion:

  • Housing (Certain Down payments, Repair, Utility Assistance);
  • Education (Tuition Assistance, Housing, Books, Child Care to Attend School, etc.);
  • Elderly and Disabled Programs (Meals, Transport, etc.);
  • Cultural and Religious Programs (Attend Cultural Events; Reimbursement of Payments to Cultural Practitioners; Attend Funeral, Wakes, Burials);

The entire guidance can be found here http://www.irs.gov/pub/irs-drop/rp-14-35.pdf.   While this is indeed a step in the right direction, it IS only a guidance and subject to the winds of political change that often buffet Indian Country.  The Obama Administration continues to demonstrate its commitment to the First People of the United States but we may not have this same level of commitment in the future.  We must remain vigilant and continue to press for permanent changes in statute and regulation.

NAFOA will be hosting a webinar on June 5, 2014.  Info below.

 

NAFOA 
1101 30th St, NW Suite 500
Washington, DC 20007

www.nafoa.org 

Webinar Details

Time: 12:30 p.m. – 1:30 p.m. (EDT) 

Date: Thursday, June 5, 2014

Register: Click Here

Resources

IRS’ Intermin GWE Guidance (Notice 2012-75)

IRS Releases New General 

Welfare Guidance

Following a prolonged period of dialogue and consultation with tribes, the Internal Revenue Service (IRS) has issued its final guidance on General Welfare Exclusion (GWE) as it applies to tribal governments. This guidance seeks to ensure that the sovereign right of tribal nations to provide services that improve the welfare of their citizens will be uniformly upheld.

 

The guidance released today, June 3, 2014, in the form of a revenue procedure (RP 2014-35), improves upon the IRS’ interim guidance (Notice 2012-75) issued in December 2012. Some of the notable changes include:

  • Expanding GWE to include individuals considered as “qualified nonmembers”, such as spouses and children.
  • Expanding GWE to include payment of all expenses for individuals participating in, and attending certain tribal activities (including religious, cultural and historical tribal activities).
  • Expanding GWE to include payment of expenses associated with funerals, burials and other bereavement events.
  • Expanding GWE to include payments for preschool, education, and transportation expenses.
  • Clarifying that tribes can fund general welfare programs through levies, taxes, service fees and revenues from tribally-owned businesses.

NAFOA will host a joint webinar with its organizational partner, the National Congress of American Indians, at 12:30 p.m. (EDT) on Thursday, June 5, to review the guidance and its impact on tribal governments. Please send any opinions, questions and comments to Dante Desiderio, dante@nafoa.org.

 

Growing Tribal Economies * Strengthening Tribal Finance