Bureau of Indian Affairs Releases New ICWA Guidelines

By: Theodore J. Griswold | Partner | ted.griswold@procopio.com

For the first time since the enactment of the Indian Child Welfare Act (ICWA) 35 years ago, the Bureau of Indian Affairs (BIA) has updated its guidelines for state courts and agencies in Indian child custody proceedings. The new guidelines are a welcome response to dozens of comments and listening sessions provided to the BIA throughout 2014, many of which provided specific suggestions for guidelines consistent with ICWA jurisprudence since 1979.

ICWA was enacted in 1978 after Congress found that “an alarming high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” With this purpose, ICWA was adopted to state the strong federal policy that “where possible, an Indian child should remain within the Indian community.” Over the years, this somewhat foreign concept to State courts has been molded and defined through individual cases; however, it has been difficult to get uniform acceptance of the special nature of child custody proceedings dealing with Indian children. These guidelines provide significant clarifying authority for Tribal members, family members and State courts to make the application of ICWA more consistent and its purposes more successful. In addition to the guidelines themselves, the document contains specific examples explaining the purpose and nature of ICWA in real family context.

A copy of the updated BIA’s guidelines for State Courts in Indian Child Custody Proceedings can be found here and the BIA’s website containing the new (and previous) guidelines, the Indian Child Welfare Act statute, frequently asked questions and other helpful resources can be found here.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Will Marijuana be a Big Deal in Indian Country?

By: Theodore J. Griswold | Partner | ted.griswold@procopio.com
Rachel Giubilato | Law Clerk

The publications are abuzz with the prospects of a very new “green business” in Indian Country. The issuance of the Department of Justice’s October 2014 Policy Statement Regarding Marijuana Issues in Indian Country seemingly opened Tribal business development to enter unchartered territory. Marijuana territory. The prospects of substantial new nongaming business opportunities for Tribal governments cannot be overstated—they are huge. However, each Tribal government will need to adjust its legal system to handle this new industry and will need to create a security system to protect their business while balancing these benefits against social and cultural challenges on the Reservation. Those that do so successfully stand to expand their economic scope where competition is limited, and profits can be rewarding. So what has changed?

Over the past several years, disputes have risen between State and Federal governments over which marijuana uses are criminally enforceable on a Reservation under the Federal Controlled Substances Act and which will be tolerated with DOJ prosecutorial discretion. These disputes left Tribal governments in the dark as to which rules govern Tribal lands. However, the 2014 Policy Statement ended that confusion. The Statement clarified that marijuana operations on Tribal lands may be regulated and enforced by Tribal governments without Federal prosecutorial intervention, consistent with the DOJ’s eight delineated enforcement priorities:

  1. Preventing the distribution of marijuana to minors;
  2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
  3. Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  4. Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  5. Preventing violent and the use of firearms in the cultivation and distribution of marijuana;
  6. Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  7. Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  8. Preventing marijuana possession or use on Federal property.

The Policy Statement also provides a government-to-government consultation guideline, which allows Tribes to expect prosecutorial collaboration when enforcement priorities have been violated in their jurisdiction. The consultation is designed to ensure a Tribal voice in the prosecutorial process, respecting the Tribe’s sovereign powers. This helps provide certainty to the Tribe’s venture into the industry.

But is marijuana a legalized business? Us lawyers call that a gray area. In 1996 California voters passed Proposition 215, also known as the Compassionate Use Act which technically did not legalize the use or sale of marijuana (that would conflict with the Federal Controlled Substances Act). Instead, the State of California made the conscious decision that it will not prosecute the use and sale of marijuana when a physician has recommended its use. The Compassionate Use Act amended the Health & Safety Code to ensure that seriously ill Californians and their primary caregivers, who possess or cultivate marijuana for the personal medical purposes of the patient upon the recommendation or approval of a physician, are not subject to California criminal prosecution or sanction. As result, a safe, valid market for marijuana products was created.

However, the Compassion Use Act does not protect marijuana plants from seizure or individuals from Federal prosecution under the Federal Controlled Substances Act. The new DOJ Policy Statement changes that concern on Tribal lands and creates a better understanding with that, provided the DOJ’s eight priorities are supported by the Tribal regulatory system, the Tribal government can sanction the cultivation and sale of marijuana on Tribal lands. As a controlled substance, Tribes will want to regulate how the substance is grown and/or disbursed on the Reservation, and will need to provide security to protect their system and their investment. These are protections that the limited number of local medical marijuana dispensaries in California municipalities have already faced.

Moreover, the Compassionate Use Act does not allow for any individual or business in the State of California to profit from the growth, sale or distribution of marijuana (California Health and Safety Code section 11362.765(a)). This restriction requires all medical marijuana facilities in the State to be nonprofit organizations, restricting investment into the businesses from outside entities. This restriction would not apply to businesses on Tribal lands.

Make no doubt about it– this could be a big deal in Indian Country for those governments that choose to pursue the industry’s challenges. And no compact is required to be negotiated with the State. This potentially lucrative business operation can increase a Tribal government’s economic independence to fund currently under-funded governmental programs, expand available educational opportunities through scholarship grants, and create jobs for Tribal members on the Reservation.

The 2014 DOJ Policy Statement can be found here. The Compassion Use Act is found here. Tribal governments seeking additional information on the formation of marijuana operations may reach out to the author.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Tribal Governments Can Maximize Their Economic Development Opportunities and Affirm Their Self-Governance by Updating Tribal Commercial Codes

By: Sandra L. Shippey | Partner | sandra.shippey@procopio.com
Stephanie Conduff | Law Clerk | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Tribes and their members are regularly engaging in commercial transactions by ever increasing numbers. Also increasing are commercial financing transactions to support the tribe’s commercial activities. Sometimes, tribes or tribal members need to borrow money to support their commercial activities from lenders who will require that personal property collateral be pledged to the lender to secure the borrower’s obligations under the loan documents. One of the biggest impediments to gaining such loans is a lender’s unfamiliarity in dealing in Indian Country. Tribes have a useful tool that can both minimize this lender concern and allow the tribal government to exert is own control over financial dealings.

The Uniform Commercial Code is a set of legal rules covering many important business and commercial activities. It was proposed for the purpose of making commercial business transactions more predictable and efficient by making commercial laws consistent across all 50 states. Article 1 provides definitions and general principles that apply to the entire Uniform Commercial Code and Article 9 of the Uniform Commercial Code covers security interests in personal property. A security interest is the creditor’s claim to the personal property to secure the performance of an obligation, usually the payment of a debt. A secured transaction is an agreement where one party gives to another party a lien on property, other than real estate, as collateral for a loan or other financing transaction.

Lenders are familiar with the rules in the Uniform Commercial Code and they know what to do in all 50 states to create an enforceable security interest and to make sure they have first priority in their collateral in relation to other creditors. Therefore, lenders making loans in Indian Country have often included language in their loan documents requiring tribes to adopt, as their own law, all or part of Article 1 and Article 9 of the Uniform Commercial Code of the applicable state where the tribal lands are located, and for the tribe and its business entities to consent to the jurisdictions of the courts in that state rather than tribal courts. However, that law may not adequately reflect the tribe’s culture and values.

There is an alternative. Tribes can adopt their own version of the Uniform Commercial Code. If the legal concepts in the tribal law are familiar to lenders, it should make lenders more comfortable making loans to the tribe and its businesses. This will help the tribe attract more lenders to finance new tribal projects. In 2005, the Uniform Law Commission (ULC), with support from the Federal Reserve Bank of Minneapolis published the Model Tribal Secured Transactions Act (the Model Tribal UCC) and proposed that it be adopted by Indian tribes to create a relatively uniform system of commercial laws in Indian Country that are similar to the commercial laws found in Article 1 and Article 9 of the Uniform Commercial Code. The Model Tribal UCC contains similar core principles, terminology and procedures as those contained in Uniform Commercial Code. However, each tribe can adopt a customized version of the Model Tribal UCC which will give each tribe the ability to affirm its own sovereign immunity and self governance and incorporate its own tribal customs and traditions into the law.

With 567 federally recognized tribal governments in the United States, there are many opportunities for business transactions between tribal governments and tribal business entities and outside lenders. If a tribe has not adopted any form of the Uniform Commercial Code, lenders are likely to require the tribe to adopt the local state’s Uniform Commercial Code and that may not be consistent with the tribe’s needs. By adopting a customized version of the Model Tribal UCC to fit its specific tribal culture, values and needs, a tribal government can be proactive, transparent and choose tribal courts to enforce any disputes. This will encourage lenders to provide capital for tribal projects and continue to grow the opportunities in tribal communities to encourage business development and self governance in Indian Country.

For a more extensive discussion of this issue, click here.

Sandy Shippey is a member of the Native American Practice Group and the State Bar of California – Business Law Section Uniform Commercial Code Committee.

Stephanie Conduff is a citizen of the Cherokee Nation and a former Procopio Native American Intern. She graduated from the University of Oklahoma College of Law and is currently preparing to sit for the Oklahoma Bar Exam before returning to Procopio.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Former Procopio Intern Eric Abeita named University of New Mexico Tribal Law Journal Managing Editor

Theodore J. Griswold | Partner | ted.griswold@procopio.com

“Let Our Voices Be Heard, Let Our Stories Be Told”

The motto of the University of New Mexico Tribal Law Journal is in capable hands, with Eric Abeita (UNM School of Law 2015) as managing editor for the journal. Mr. Abeita was one of the Procopio Native American Law Interns during the summer of 2014, during which he was an active contributor to the Procopio Blog, The Blogging Circle.

The Tribal Law Journal has also started a blog for more frequent notifications of important legal issues. Check it out and follow some of the stories and articles provided by University of New Mexico law students and Tribal Law Journal staff. The blog can be found here.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.