Tribal-State Relations

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

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

On October 23, 2015 federal DEA agents raided a Menominee ‎hemp grow destroying approximately 30,000 plants. While the Tribe is claiming that the plants were all industrial hemp containing less than 3% THC, the DEA alleges that the plants were in fact marijuana. The Tribe has promised to bring the matter to federal court.

The recent federal and state law enforcement activity on federal land calls into question the true efficacy of the “Wilkinson Memo” that was widely advertised by industry, some legal advocates, and some tribes as “legalizing” cannabis on tribal land. These recent raids illustrate that if anything, the Wilkinson Memo simply opened a can of worms.

As I have been saying since the release of the DOJ Policy Guidance aka Wilkinson Memo, there are ‎very real legal hurdles that need to be overcome before a tribe should invest resources in developing an operation or allow industry access to tribal lands. It appears that the Menominee Tribe was in contact with the state and federal authorities regarding the grow which begs the question – what must a tribe do in order to participate in this emerging industry?

Menominee’s location in a state without any legalized marijuana is problematic. And if the plants are in fact marijuana plants and not hemp, then the tribe and/or its partner took a very risky gamble. If the plants are truly hemp, then it is clear that the feds are not going to allow tribes to participate in an agricultural project for a crop that, according to a Congressional Research Service report, has the potential to earn the second highest revenue‎ per acre (after tobacco).

I’ve been preaching the merits of hemp cultivation as a major economic opportunity for tribes. But it is not an opportunity to “get cute” and mix marijuana plants into the grow. Stay clean and I believe that investment could be very lucrative provided you are doing so within the framework provided by the 2014 Farm Bill.

At this point, it is clear that unless a tribe is located in a state with some form of legalized marijuana, engaging in this industry (even hemp) is very risky. And for tribes even in states with legalized medicinal or recreational marijuana, careful evaluation and coordination of the state regulations is a necessity. Yes, I know, we are sovereign governments but we can be both sovereign and smart… particularly when the risks are so high.

Take care,
L

Native American hold hands with another handThe Suquamish Tribe attempted to break the internet on Friday with the announcement that the Tribe and State of Washington signed the first Marijuana Compact. News about the Squaxin Island-Washington Marijuana Compact followed shortly after. I may be slightly biased, but the tribes in the Northwest continue to demonstrate a willingness to work collaboratively with their respective states while requiring the state governments to acknowledge and respect tribal sovereignty.

After legalization of marijuana in Washington State, the State quickly locked down the fledgling industry by issuing a limited number of licenses and establishing a strict canopy limit. HB 2000 provides a mechanism for tribes to participate in the industry without their non-tribal partners risking their state-issued license by entering into a compact regarding marijuana issues. The Suquamish MJ Compact was the first such compact.

What does a MJ compact mean for the Tribe?

The Compacts do several things – First, the Tribe can open retail stores as well as processing and production centers. Arguably, this was already allowable under the Wilkinson Memo. However, Section V.E specifically allows the Tribe to purchase marijuana products from or sell marijuana products to State Licensees without any potential citation, fine or adverse licensing action against any State License as a result of that transaction.

Second, the State agreed to withhold granting a license to any person or business applying for a license within Suquamish territory without the express written permission of the Tribe.

Third, while the Tribe cannot impose a tax that is less than the current State tax (which might create a business advantage to Tribal MJ businesses), the Tribe will nonetheless receive 100% of any tax imposed. The Tribe agreed in the MJ Compact to only use the tax funds for “Essential Tribal Services”, which are defined as “services provided by the Tribe including, but not limited to, administration, public facilities, fire, police, health, education, elder care, social services, sewer, water, environmental and land use, transportation, utility services, community development, and economic development.“

Fourth, the Tribe can use its own traceability system and is not required to only use the State’s and there is a specific tax exemption for transactions involving medical marijuana used in the course of medical treatments at a medical facility owned and operated by the Tribe.

What do these MJ Compacts means for Indian Country?

Besides providing a template for how a Tribe might participate in a state-regulated MJ industry, I believe this Compact serves as another example of how Tribes and States can work collaboratively together to provide economic opportunities for both governments. Too often, we see States fighting Tribes. While Washington is not yet perfect, State politicians must acknowledge the importance of the Native vote and deal with Tribes on a government-to-government basis.

I watched the movie “Selma” recently on my long flight from Greece. I was inspired yet again by the incomparable Rev. Dr. Martin Luther King Jr. to continue encouraging all our tribal members to vote! It may seem tedious, but change is never easy and always takes longer than we’d like. As we vote in our local elections and that influence filters up, we will see more States, like Washington, to begin to work together WITH us instead of against us.

When I started this blog, I didn’t think I’d end up talking about voting… but, I think this is where it was supposed to end up — climbing to our mountaintop!

Optimistically,
L