Legislation

CA Senate Approves Casino Deal for North Fork Rancheria of Mono Indians

Victoria Sweet

The 22-11 vote, which split members of both parties, will allow the North Fork Rancheria of Mono Indians to build a new casino with 2,000 slot machines on a 300-acre parcel just north of Madera in the Central Valley that was once slated to be a NASCAR track.

The deal was made possible through a rare federal approval process that allowed the tribe to build on land it has just recently acquired. Federal law stipulates that typically casinos can be build only on lands recognized as belonging to tribes before 1988, the year the federal government officially sanctioned tribal gambling.

The exception made for North Fork angered other neighboring and large casino-owning tribes around the state who said the North Fork were “reservation shopping.” The new location’s proximity to a major state highway and the city of Madera also touched off concerns about the encroachment of Indian casinos into urban areas.

Article here.

Previous coverage here.

Santa Ysabel Announces Support of Same Sex Marriage

Victoria Sweet1 Comment

Among those who have suffered the denial of basic human rights in this country, Native Americans can unfortunately take a prominent place. Because their historic experience of prejudice strongly resonates to this day, the Santa Ysabel Tribe, founded in 1893 in California, has announced its firm support for the LGBT community as it strives for same-sex marriage equality and an end to governmental discrimination. As sovereign nations, Tribes in the United States have the power to issue proclamations on public policy issues affecting their membership and others occupying their reservations.

Santa Ysabel is one of only four Tribes in the U.S., and the only Tribe in California, to date, to recognize same sex marriage. The Santa Ysabel Tribe’s announcement comes as the Supreme Court contemplates the constitutionality of DOMA and Californians await a decision regarding the legality of prop 8 in their state.

Story here.

RAND Report on Sole-Source 8(a) Native American Contracts

Matthew L.M. Fletcher

Here.

The description:

Some participants in the federal 8(a) Business Development Program, including Alaska Native Corporations, Indian tribes, and Native Hawaiian Organizations, face no limit on the value of sole-source contracts they can receive. Concerns over the rising number of these contracts led to requirements for justification and approval of contracts above $20 million. This raised other concerns regarding the effects of the new requirements on Native American-owned firms and contracting personnel. The new federal requirement may delay the award of these contracts but have little impact on the number of such contracts awarded.

Still No Decision On Baby Veronica Case

Victoria Sweet

Ugh, the suspense . . . .

SCOTUS will be releasing more opinions on Thursday.

Previous coverage here.

Hoopa Tribe Starts Banishment Process of Non-Tribal Member Sex Offenders

Victoria Sweet

The Hoopa Valley Tribal Council voted unanimously to begin the process of banishing all non Hoopa tribal member sex offenders from Hoopa.

 

The article can be found here.

DOJ Press Release on Tribal Law and Order Act Report

Matthew L.M. Fletcher

Report to Congress is Requirement under the Tribal Law and Order Act of 2010

WASHINGTON – The Department of Justice released today a report to Congress entitled Indian Country Investigations and Prosecutions which provides a range of enforcement statistics required under the Tribal Law and Order Act of 2010. The report, based on data compiled from the case management system used by U.S. Attorney’s Offices (USAO) with Indian Country jurisdiction shows among other things a 54 percent increase in Indian Country criminal prosecutions since Fiscal Year 2009.

“Across the country, U.S. Attorneys have been focused on fighting crime in Indian Country and reinforcing the bond between federal and tribal law enforcement, which also strengthens the faith that people have in their criminal justice system,” said Attorney General Eric Holder. “This report on federal law enforcement efforts in Indian Country is beginning to show the fruits of this labor with an increase in Indian Country cases prosecuted in federal courts over the past three years, but we have more work to do. The department will continue in its commitment to working with our tribal partners to build safe, sustainable, and healthy communities in American Indian and Alaska Native communities.”

“Every day, the men and women from U.S. Attorney’s Offices who prosecute violent crimes in Indian Country work hard to improve public safety in those communities,” said Timothy Purdon, U.S. Attorney for the District of North Dakota and Chairman of the Attorney General’s Advisory Subcommittee on Native American Issues. “The notable increase in prosecutions of Indian Country crime described in this report are the result of the many initiatives led by U.S. Attorney’s Offices across the country, including community prosecution strategies that place federal prosecutors on the reservations on a frequent basis to enhance criminal investigations and communication, and Tribal Special Assistant U.S. Attorney programs that have enhanced coordination with cross-deputized tribal prosecutors. These efforts and the resulting increase in prosecutions are a testament to the Justice Department’s commitment to public safety in Indian Country and they are an encouraging step toward safer, stronger native communities.”

“The FBI has a sustained commitment to enhancing public safety in Indian Country,” said FBI Assistant Director Ron Hosko. “As this report demonstrates our investigative strategy is focused on fully leveraging vital partnerships with federal, state, local and tribal agencies to address violent crime and victimization in tribal communities. This approach not only produces investigative results in the short term but also develops the trust and collaboration necessary to ensure sustained enhancements to public safety in the long term.”

The information contained in the report shows the following:

• The Justice Department’s prioritization of Indian country crime has resulted in a notable increase in commitment to overall law enforcement efforts in Indian country. Caseloads have increased overall from 1,091 cases filed in fiscal year (FY) 2009 to 1,138 in FY 2010 to 1,547 in FY 2011 to 1,677 in FY 2012. This represents a nearly 54 percent increase in the Indian country crime caseload.

• USAO data for calendar year (CY) 2011 indicate that just under 37 percent (1,041) of all Indian Country submissions for prosecution (2,840) were declined by USAOs. In CY 2012, USAOs declined approximately 31 percent (965) of all (3,145) Indian Country submissions for prosecution. Overall, a substantial majority of Indian Country criminal cases opened by USAOs were prosecuted.

• The most common reasons for declination by USAOs were insufficient evidence (61 percent in CY 2011 and 52 percent in CY 2012) and referral to another prosecuting authority (19 percent in CY 2011 and 24 percent in CY 2012).

• The most common reasons investigations during calendar years CY 2011 and 2012 were not referred included deaths determined to be due to non-criminal causes (e.g., natural causes, accidents, suicides) and allegations in which there was insufficient evidence to prove criminal activity.

•The report shows a new era of partnership between the federal government and American Indian tribes, including an unprecedented level of collaboration with tribal law enforcement. The increase in collaboration and communication strengthens the bond of trust between federal and tribal investigators, prosecutors, and other personnel in both federal and tribal criminal justice systems, and it will make communities safer as a result.

Read the entire report at www.justice.gov/tribal/tloa-report-cy-2011-2012.pdf

Read about the Justice Department’s efforts to increase public safety in Indian County at http://www.justice.gov/tribal/accomplishments.html

Minnesota Legislature Passes Bill to “Fix” the Minnesota SCT Decision In re R.S.

Matthew L.M. Fletcher

Minnesota Legislature Passes Bill to “Fix” the Minn. SCT Decision In re R.S.

HF 252, which was introduced by Rep. Susan Allen, overcame its final hurdle in the Minnesota Legislature by passing the House by a wide margin on May 10th. It passed the Senate with an equally wide margin the previous week and was signed into law on May 16th.

HF 252 reverses the affects of the Minn. SCT’s decision In the Matter of the Welfare of the Child of R.S. and L.S., wherein the Court denied a transfer of jurisdiction to a tribal court in a proceeding at the pre-adoptive stage. HF 252 amends Minnesota Statute 260.771, Subd. 3 to allow for transfers of jurisdiction at all four stages of a child custody proceeding: involuntary foster care placements; termination of parental rights; pre-adoptive; and adoption proceedings. HF 252 is a tremendous accomplishment for the 11 tribes and bands in Minnesota as well as a brave and courageous action by Rep. Allen.

Our prior post on this legislation is here.

Senate Finance Committee Tax Reform Options Paper

Matthew 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)

Columbia Law Review Article on Constitutionality of VAWA/TLOA-Type Statutes

Matthew L.M. Fletcher

Zachary S. Price has published “Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction” in the Columbia Law Review.

Here is the abstract:

In both federal Indian law and the law regarding United States territories, the Supreme Court in recent decades has shown increasing skepticism about previously tolerated elements of constitutionally unregulated local governmental authority. This Article proposes a framework for resolving constitutional questions raised by the Court’s recent cases in these areas. Focusing on the criminal context, where the stakes are highest both for individual defendants and for the affected communities, this Article considers three issues: (1) whether and under what circumstances Congress may confer criminal jurisdiction on tribal and territorial governments without requiring that those governments’ enforcement decisions be subject to federal executive supervision; (2) whether double jeopardy should bar successive prosecution by both the federal government and a tribal or territorial government exercising federally authorized criminal jurisdiction; and (3) what, if any, constitutional procedural protections apply when a tribal or territorial government exercises criminal jurisdiction pursuant to such federal authorization.

Through close examination of these three questions, this Article aims to show that framing the analysis in terms of divided sovereignty, and recognizing the close parallels between tribal, territorial, and related federal-state contexts, may yield the most attractive resolutions that are viable in light of the Supreme Court’s recent decisions. This Article contrasts this approach with an alternative framework that would organize the analysis around a distinction between “inherent” and “delegated” governmental authority.

Looks like a fascinating paper from a former OLC attorney. Will study with interest.

New Scholarship on Tribal Bankruptcy under Chapter 15 (“Foreign Nations”)

Matthew L.M. Fletcher

Blake Quackenbush has published “Cross-Border Insolvency and the Eligibility of Indian Tribes to Use Chapter 15 of the Bankruptcy Code” in the T.M. Cooley Law Review.

Here is the abstract:

Defaulting corporate debtors, sullied by unmanageable debt, often seek relief in federal bankruptcy court under 11 U.S.C. § 101, et seq. of the United States Code (Bankruptcy Code). Yet bankruptcy courts and scholars seem to agree that Indian tribes, like the Mashantucket Pequot Tribal Nation, cannot seek the same protection commonly afforded to individuals, entities, and municipalities under chapters 7 and 11 of the Bankruptcy Code.