Author: Matthew L.M. Fletcher – Page 740

Plaintiff State of California initially sued defendant Darren Rose in Shasta County Superior Court, alleging that Rose violated state law by selling certain unregistered cigarette brands and by failing to properly collect & remit tobacco excise taxes. Rose removed the matter to this court, alleging federal question jurisdiction. California now moves to remand, and seeks an accompanying award of attorney’s fees and costs if it prevails on this motion.

The motion came on for hearing on May 13, 2013. Having considered the matter, for the reasons set forth below, the court will grant California’s motion and remand this matter.

Montana SCT Reverses Termination of Parental Rights because of ICWA Procedural Violations

May 16, 2013Matthew L.M. Fletcher1 Comment

Here is the Montana Supreme Court’s ruling in In re K.B.:

Opinion

Excerpt:

Mother appeared with counsel at the termination hearing and contested the termination of her parental rights, suggesting instead that the State be granted a long-term guardianship of the children. The Tribe did not appear. Mother’s attorney informed the court:

I don’t think alcoholism is a reason to terminate under the Indian Child Welfare Act. My client has been making visits. My client is employed. And my client has been going to group care, in regard to an alcohol issue. The Indian Child Welfare Act does not encourage termination regarding alcoholism. . . .

Because counsel could not support his client’s position with a specific citation to ICWA, the court responded that it could not consider counsel’s objection: “I’m saying, for the record, to the Montana Supreme Court and to you, frankly, I can’t consider an objection on legal authority that’s not cited to the Court.”

And the briefs:

Appellant

Appellee

Eleventh Circuit Rules against Miccosukee Tribe in Dispute over Everglades Flood Control

May 16, 2013Matthew L.M. Fletcher2 Comments

Here is the opinion in Miccosukee Tribe of Indians v. United States. An excerpt:

Since 1995, the Miccosukee Tribe of Indians of Florida (“Tribe” or “Miccosukee tribe”) has had a running battle with the federal government over the government’s management of the Central and Southern Florida Project for Flood Control (“C&SF Project”) in the Everglades. This case is the most recent chapter. The gist of the four-count complaint the Tribe filed in this case is that the project diverts excessive flood waters over tribal lands—in part to protect other land owners whose properties are located within the project. The District Court dismissed three of the complaint’s counts for failure to state a claim for relief and the fourth on summary judgment. The Tribe appeals these decisions. We affirm.

Here are the briefs:

Miccosukee Initial Brief

Appellee Brief

Miccosukee Reply

US Supplemental Letter Oct 2011

US Supplemental Letter Sept 2012

Senate Finance Committee Tax Reform Options Paper

May 16, 2013Matthew L.M. Fletcher

Here.

An excerpt:

III. TRIBAL FINANCING

Indian tribes and wholly-owned tribal corporations chartered under Federal law are not subject to Federal income taxes. In contrast, a corporation owned by a tribe or tribal members and organized under State law is subject to Federal income tax on income earned from commercial activities conducted on or off the tribe’s reservation. Generally, tribal members are subject to Federal income taxes except for certain income. For example, income earned from the exercise of certain fishing rights is excluded from income.

Tribes are often depressed economic communities with high unemployment. From 2007 to 2010, the American Indian unemployment rate increased from 7.5% to 15.2%. The unemployment rate for Alaska Natives was even higher—21.3% in 2010. The tax code contains several provisions to boost economic activity within and on tribal lands. Tribes are also allowed to issue tax-exempt bonds; however, such bonds are limited to “essential government functions”, a requirement that does not apply to states.

1. Modify tribal tax-exempt bonds

a. Modify tax-exempt bonds for tribal governments (FY14 Administration Budget Proposal; estimated in 2013 to cost less than $1 billion over 10 years; Joint Committee on Taxation, JCX-19-05R, 2005)

i. Repeal the essential governmental function requirement so that eligibility standards are the same for tribal governments and state and local governments (Testimony of Dr. Lindsay Robertson before the Finance Committee, May 15, 2012; Department of the Treasury, “Report and Recommendations to Congress Regarding Tribal Economic Development Bond Provision under Section 7871 of the Internal Revenue Code,” 2011)

ii. Conform private activity bond standard to those of state and local governments

1. Could restrict project location to reservations

2. Could prohibit issue or use of bonds for gambling facilities

2. Exempt certain tribal activities from taxation

a. Create a ten-year, tax-free zone for selected areas of Indian country in which economic activity would not be subject to any federal, state, or local income, sales, or excise taxes (Testimony of President Robert Odawi Porter before the Finance Committee, May 15, 2012; Lummi Indian Business Council comments to Committee on Ways and Means working group on Charitable/Exempt organizations, submitted April 15, 2013)

3. Clarify the general welfare exclusion doctrine for certain benefits provided by tribes to members (Various Tribal comments to Committee on Ways and Means working group on Charitable/Exempt organizations, submitted April 15, 2013)

a. Codify the income exclusion for government benefits provided by Indian tribes under the general welfare exclusion doctrine

b. Adopt a moratorium on audits relating to the general welfare exclusion doctrine while implementing Notice 2012-75

4. Make permanent or expand temporary provisions

a. Make permanent the Indian employment credit and accelerated depreciation on Indian reservations (Choctaw Nation of Oklahoma comments to Committee on Ways and Means working group on Charitable/Exempt organizations, submitted April 15, 2013)

b. Expand the Indian employment tax credit to more closely resemble the Work Opportunity Tax Credit (Testimony of Donald Laverdure before the Finance Committee, July 22, 2008)

5. Conform the definition of Indian and reservation for tax purposes (Testimony of Director D’Shane Barnett before the House Appropriations Subcommittee on the Interior, Environment, and Related Agencies, March 19, 2013)

6. Modify the adoption tax credit to allow Tribal Governments to determine whether a child has special needs (FY14 Administration Budget Proposal; estimated in 2013 to cost less than $1 billion over 10 years)

Navajo Nation Office of Legislative Counsel Posting

May 16, 2013Matthew L.M. Fletcher

CHIEF LEGISLATIVE COUNSEL

NAVAJO NATION OFFICE OF LEGISLATIVE COUNSEL

The Office of Legislative Counsel seeks to fill the Chief Legislative Counsel position to work with the Legislative Branch of the Navajo Nation Government.

The Chief Legislative Counsel serves as legal counsel to the Navajo Nation Council; provides comprehensive legal guidance and advice to the Navajo Nation Council, standing committees, boards, commissions, and the Legislative Branch; coordinates with the Department of Justice and other attorneys in providing legal services to the Nation; provides advice and representation, interpretation of law, research, analysis and representation in mediation and administrative hearing; provides training and orientation in specific laws and areas of law; directs and performs complex legal research and analysis of laws, legal precedents, and issue; drafts, reviews and prepares proposed legislation, reports, legal documents, and correspondence for the Navajo Nation Council and entities of the Legislative Branch; responsible for the codification of Navajo Nation laws, rules and regulations; develops annual work plan and budget for the Office of Legislative Counsel; attends meetings, training and seminars in support of continuing legal education requirements; prepares and submits activity reports to the Office of the Speaker.

The Chief Legislative Counsel must have a Juris Doctorate and twelve (12) years of professional work experience as a state licensed attorney, four (4) years of which must have been in a supervisory or lead capacity. Current admission in any state bar with the intention of seeking and securing admission to the Navajo Nation Bar Association and either the Arizona, New Mexico or Utah Bar within one (1) year of date of hire.

Application shall be submitted to the Navajo Nation Department of Personnel Management on official Navajo Nation Employment Application forms, along with copies of J.D. diploma and state bar membership certificate, and Navajo Nation law license. Application available at www.dpm.navajo-nsn.gov. Copies of the application and accompanying documents are also to be submitted to the Office of Legislative Counsel at the address below.

The Chief Legislative Counsel serves as legal counsel to the Navajo Nation Council at a negotiated salary. Veterans’ Preference applies. The Navajo Nation will give preference to qualified applicant in accordance with the Navajo Preference in Employment Act.

Closing Date: Open until filled

Contact: Mariana Kahn, Acting Chief Legislative Counsel or Ronald Haven, Principal Attorney

Office of Legislative Counsel

P.O. Box 3390

Window Rock, Arizona 86515

Tele: 928/871-7166