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

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

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!

With Respect,
Lael

Hempen shoes. Panauti-Nepal. 1100
Hemp shoes in Nepal

As I’ve continued to delve into the issue of cannabis in Indian Country, I’ve also learned more about the possibilities that hemp provides.  I’m reserving judgment on whether marijuana, medical or recreational, will actually produce the big bucks that industry is promising.  But it is clear that sales tax on the sale of these products has the potential to create immediate government revenue from sales tax.  Last year in Colorado, for example, the state collected $63M in revenue from sales tax.  Now, I don’t think that we can expect quite that amount, but a tribe that legalizes, licenses, regulates and taxes these products can expect to see an immediate cash flow once the robust regulatory system is implemented.

Hemp is a more long term proposition, but one that, as an industry insider recently said to me, is the billion-dollar industry (with a “B:”). Hemp is produced by the cannabis plant, but without the high levels of THC that cause the “intoxicating effects.”  The potential to use hemp as food, a textile, to build homes or cars or for use as bio-fuel.

My new friend and former U.S. District Attorney Tim Purdon and I have been talking about the seemingly endless possibilities of hemp in Indian Country.  We both think that hemp could be a very important product in Indian Country.  Here is an article Tim wrote on the topic.

Bottom line – Marijuana is still controversial in our community and in the United States generally.  Hemp, however, could be the much less controversial and possibly much larger economic driver option for Indian Country.

The more you know… the more you know.

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.