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  The WHCNAA is a product of an Executive Order which could be rescinded by the incoming President as could  Executive Order 13, 175 on Tribal Consultation.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

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.

On October 15-16, Andrea Alexander (Makah) will be a featured speaker at the “Taking Smoke Signals Digital” Conference at the Tulalip Resort Casino, Tulalip, WA.

Andrea Alexander has over 30 years experience of development in the native community and runs her own business, Energy Innovation Foundation. Her firm provides strategic planning and project development for Tribal governments and non-profit organizations. Andrea Alexander has been a native community activist for 10 years for telecommunications and energy and stays current on the policy & programs that impacts the tribes.

Andrea Alexander commented on the problem facing native communities: The lack of reliable broadband has an adverse impact on the many services each Tribal government has to deliver in aspects of healthcare, education, transportation and commerce.

According to Andrea, “My tribe doesn’t have full access to broadband. The current policy depends on the private sector to build the infrastructure, but if the population is too small, the investment will not happen. It’s a huge problem and we’re in a huge crisis situation. The fact that our children can’t take the required state tests because we don’t have 4G has helped to motivate leadership to take action and give new to life to this important policy issue. We are seeking economic parity to broadband to gain full access to the internet as well as broader cell phone coverage for all rural tribal communities.”

Andrea has served as the Director of Energy for the Affiliated Tribes of Northwest Indians, Deputy Director for the Washington State Office on Indian Affairs, and her own tribe, the Makah Nation to create public/private partnerships in the Northwest. As the current Co-Chair for the ATNI Telecommunications Committee, she hopes the conference attendees will help:

“Recruit new stakeholders to this issue that will travel to Tulalip and learn about our issues. The conference location will help attract active allies willing to help northwest native people address the growing technology issues we face. We need help in building a broad-based, diverse movement committed to solving the lack of connectivity. In today’s world, all services and businesses are dependent on the internet and without it the people who live and work in these areas are at a distinct disadvantage. The fact that we still have large areas without broadband service is a form of economic racism and is essentially redlining these communities.”

“On October 16, there will be an ATNI Technology Committee work session to bring the common policy issues to light and build the necessary consensus to create strategies to overcome obstacles in the technology field. Once we get people to agree on the problem, then we can work on developing a shared strategy to overcome any barriers. Funding for broadband initiatives is our biggest challenge right now; the lack of funds and the high level of complexity in the application process is one area we can address right away. We have a short game and long game for policy change. As northwest native people, we linked to our sense of place – we will always be here. I have been taught by my Elders, success is not just about big money or big politics, it is also being committed to hanging in over the long haul. We always look forward to the great hospitality of our Tulalip brothers and sisters & thanks to all the organizers”.

Andrea gained her philanthropic experience through the First Nations Development Institute, than as the Director of Grants for Social Justice Fund Northwest, as a volunteer for the

Philanthropy Northwest Grantmakers of Color and as the founder for the Potlatch Fund. Here are her comments about the need for new funding for technology training programs.

“We need new sources of funding so any rural community, tribal or not can apply to get access to technology training. Technology is changing so rapidly and a native led effort will ensure we can keep up. We are developing the Tribal Technology Training Program or T3 to educate people at the grass roots level with tech skills that will support their educational and employment potential. One of the main outcomes I’d like to see is direct financial support for T3 initiatives. The technology training needs to happen now.”

Andrea Alexander and her husband Mike, a Haida tribal member, along with their 13 year old daughter, Antonia, reside in the Seattle area.

For further information contact Andrea Alexander, aalexander795@gmail.com.

One of the most powerful tools a tribe has is the ability to legislate for their own people. In 2011, the Suquamish Tribe adopted an ordinance allowing same sex marriages. Two years later the first couple married under that tribal law. As Chairman Forsman said in 2011, “Tribe members view the amendment as an expression of the high value they place on inclusiveness and acceptance of diverse views within our community. This amendment embodies the Suquamish people’s ultimate exercise of its inherent right as a sovereign government to address the essential social question of whom Suquamish Tribe members can choose to marry.” Sovereignty means being able to make these decisions for each community, and others, consistent with tribal values and community wishes. Here’s the story. Congrats to the newlyweds!