Tribal Youth Conference July 9th in Washington DC

By: Stephanie Conduff | Attorney | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

This summer will mark the first-ever Native youth conference hosted by the White House. It will be held July 9^th in Washington DC when Native youth will meet with Obama Administration officials and the White House Council on Native American Affairs to discuss our issues and needs from a multi-generational approach that is often not consulted by presidential administrations.

The conference is designed for Native youth, ages 14-24, and applicants must complete the Gen-I Native Youth Challenge to be eligible to attend in person.

Applications are due May 8^th so our youth have just two more weeks to have their application considered.

I am inspired by the Gen-I Stories of Inspirations I’ve read here.

Zach Garcia, a Chickasaw Nation Composer, is an award-winning musician and basketball player. Then there is Teressa Baldwin, an Alaska Native who commits herself to preventing suicide in her community by participating in formal Gubernatorial appointments to the Alaska Suicide Prevention Council and creating a non-profit organization as a high school student – Hope4Alaska. And we have Dirk Whitebreast who is gearing up to run 262 miles after losing his 18 year-old-sister to suicide. He is raising awareness by running 10 marathons in 30 days to highlight the challenges faced by Native youth.

These youth are three great reasons for the White House to finally recognize the power of our collective youth voice – and formally host them in consultation – to empower our Native communities to find solutions. If there are Native youth in your community that have a compelling story about their challenges in Indian Country, they should be in DC at the July 9^th Tribal Youth Conference. Please make sure they apply by May 8^th. We need to encourage future leadership today. And then encourage them to seek positions in our Tribal governments soon after.

For more information about the White House Tribal Nations Conference please visit here.

Stephanie Conduff, a citizen of the Cherokee Nation, is a member of the firm’s Real Estate and Environmental Team and a member of the Native American Law practice group. Her practice emphasizes working with tribal governments, individual Native people, and companies doing business in Indian Country. She provides advice and strategic policy analysis on national regulatory issues and advises clients of the legal and policy issues. Stephanie’s work focuses on tribal sovereignty and self-governance, tribal lands, and the federal trust responsibility.

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.

Indian Child Welfare Act (ICWA) Consultations Begin This Week

By: Michele B. Brown| Senior Counsel | michele.brown@procopio.com
Stephanie Conduff | Attorney | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The Bureau of Indian Affairs is hosting a series of consultative meetings with tribal leaders and the public starting this week and concluding on May 14^th in Tulsa, Oklahoma.

On March 20, 2015, the published draft regulations were released by the Bureau of Indian Affairs (BIA). They seek to improve the implementation of the Indian Child Welfare Act (ICWA) for state courts and public and private agencies. As part of the notice and comment period the BIA is hosting a series of public hearings and tribal consultations.

One of the main issues turns on the word “must” or “should.” The BIA asks commenters to analyze the draft regulations’ use of the term that an action “must” be taken because it is authorized by ICWA versus proposed provisions which provide that certain actions “should” be taken.

The first meeting was held Monday in Portland, Oregon in conjunction with the National Indian Child Welfare Association (NICWA) conference in Portland, Oregon.

Upcoming Tribal Consultation Sessions:

• Thursday, April 23, 9 a.m. – noon MST, Rapid City, South Dakota
• Tuesday, May 5, 9 a.m. – noon MST, Albuquerque, New Mexico
• Thursday, May 7, 9 a.m. – noon CST, Prior Lake, Minnesota
• Monday, May 11, 1 p.m. – 4 p.m. EST, via teleconference call-in number 888-730-9138, Passcode: INTERIOR
• Thursday, May 14, 9 a.m. – noon CST, Tulsa, Oklahoma

Upcoming Public Meetings:

• Thursday, April 23, 1 p.m. – 4 MST, Rapid City, South Dakota
• Tuesday, May 5, 1 p.m. – 4 p.m. MST, Albuquerque, New Mexico
• Thursday, May 7, 1 p.m. – 4 p.m. CST, Prior Lake, Minnesota
• Tuesday, May 12, 1 p.m. – 4 p.m. EST, via teleconference
• Thursday, May 14, 1 p.m. – 4 p.m. CST, Tulsa, Oklahoma

Assistant Secretary Washburn invites public comments at the consultation sessions or, hand delivered to Ms. Elizabeth Appel, in DC or in submitted in writing to comments@bia.gov.

For specific instructions in submitting comments, please visit the tribal leader letter that can be accessed here: http://www.indianaffairs.gov/cs/groups/public/documents/text/idc1-029630.pdf

A copy of the proposed regulations and schedule of tribal consultations and public hearings is available here: http://www.bia.gov/cs/groups/public/documents/text/idc1-029629.pdf

Please let us know if we may provide additional information or assistance regarding the Bureau of Indian Affairs proposed regulations for the Indian Child Welfare Act or related matters.

Michele B. Brown focuses her practice on family law. Since 2002, Michele has been a Certified Family Law Specialist, certified by the State Bar of California, Board of Legal Specialization. She is extensively involved in drafting and reviewing family law legislation in California and frequently testifies before the Senate and Assembly Judiciary Committees on family law.

Stephanie Conduff, a citizen of the Cherokee Nation, is a member of the firm’s Real Estate and Environmental Team and a member of the Native American Law practice group. Her practice emphasizes working with tribal governments, individual Native people, and companies doing business in Indian Country. She provides advice and strategic policy analysis on national regulatory issues and advises clients of the legal and policy issues. Stephanie’s work focuses on tribal sovereignty and self-governance, tribal lands, and the federal trust responsibility.

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.

Investing in the Future Native American Bar

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

This week Procopio is hosting the inaugural Procopio Native American Internship Alumni Dinner at the 40th Annual Indian Law Conference in Scottsdale, Arizona. It is an opportunity to join our Native American intern alumni from around the country who are now legal working professionals with our Summer 2015 interns for an evening of conversation and networking. This opens an intentional space for our Native American Interns – both past and present – to share their lived experiences both in the law and in their everyday lives with each other.

Opportunities like this are integral to the development of the Native American Bar – especially in light of the recent National Native American Bar Association (NNABA) study entitled “The Pursuit of Inclusion: An In-Depth Exploration of the Experiences and Perspectives of Native American Attorneys in the Legal Profession.” In anticipation of the 40th Annual Indian Law Conference, NNABA President Mary Smith provides an excellent overview of the study in the most recent The Federal Lawyer.

The NNABA study came to one “predominant conclusion” – that traditional diversity and inclusion programs simply are not working for Native American attorneys. A new type of inclusion is needed. It is heartening to learn that the Procopio Native American Intern program was created and operates in a way that addresses many of the concerns from the NNABA Study, building a pipeline of Native American attorneys and working toward the full inclusion of Native Americans in the legal profession.

One of the Primary NNABA concerns was, “[i]n the private sector, investment in the career development of future lawyers through internship, clerkship and fellowship programs should ensure effective outreach to Native American Students.”

The Procopio Native American Internship Program does just that. Each year Procopio’s Native American Alumni proactively call tribal governments seeking applicants from their communities and encouraging Native students to attend high school, college and law school. We work with NALSA chapters throughout the country to identify those interested in working for firms to apply for Procopio’s Native American Internship Program. We contact hundreds of law professors seeking recommendations of students for the program and post advertisements through law schools. Two law students are eventually selected each summer to join the firm in San Diego to get a broad experience in the firm. This Summer Procopio is pleased to welcome Anna Hohag (University of Arizona) and Nichole “Nikke” Alex (University of New Mexico) as the 2015 summer interns for the firm’s Native American Practice Group. We are certain that they will gain valuable experience with Procopio over the summer.

However, the investment in their career development does not, and should, not stop with a summer internship. Internship programs are an investment in the future of the Native American Bar and need to be seen as the beginning of the investment, rather than the end. Whether they are hired by your firm or not, internship programs should be extending their mentoring to Native American law students into their careers as young lawyers. Moreover, firms should be helping these young lawyers develop their legal networks and overcome the challenges that they face. This is the reason we continue to mentor our intern alumni and have our alumni dinner this week.

The NNABA study also called on the legal community to, “[r]ecognize and integrate an understanding of how generational differences may impact how younger Native American attorneys identify, express and manifest their Native American identities.”

Procopio is mindful that all Native students may not want to practice Native American law. We work to ensure they get experience in the areas that interest them the most. The program is intentionally structured as an internship and not as a competitive summer associateship program because we meet our interns where they are in their legal education and life experience. We work with them to meet deadlines and to publish articles on the Blogging Circle. We invite them to engage in the Native community in Southern California and to embrace the entire experience of being a Native American lawyer – not just life at the firm. And we learn a lot from them in the process.

Moreover, we recognize that increasing a future pipeline of Native American Lawyers starts early – in high school or before – when the spark of achievement is ripe and the students’ dream do not know limits. As part of our program, our interns meet with local Native American students at Tribal Youth Conferences and other educational events to discuss their journey from high school, through college and to law school. This helps the interns recognize their identity and achievements, and encourages the development of future Native American college (and law school) graduates. It also provides the students and interns perspective into other Native American communities.

Procopio’s Native American practice group extends the firm’s 65+ year tradition of giving back to the community it serves through its summer internship program for Native American law students or law students interested in Native American law. The firm started this program in 2011 and has now welcomed nine interns since its inception. The alumni are located in Alaska, Oklahoma (2), New Mexico, Arizona (2), California and Pennsylvania. We look forward to continuing to grow and nurture this network. For more about the Internship Alumni, click 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.

40 Questions Tribal Governments Should Consider When Discussing Whether to Undertake a Cannabis Business

By: Theodore J. Griswold | Partner | ted.griswold@procopio.com
Stephanie Conduff | Law Clerk | stephanie.conduff@procopio.com

The prospects of cannabis cultivation and sales in Indian Country are hot topics, with uncertainty the part of every conversation. The immediate discussions regarding the business of Tribal cannabis development often creates more questions than it does solutions for Indian Country. But is your Tribal Government asking all of the right questions?

With the Department of Justice’s (DOJ) October 2014 Policy Statement, Tribal Governments find themselves in a changing legal landscape, and it is likely to change even more in the coming months and years. Just last week, the Senate introduced legislation that hinted to the intent of Congress regarding increasing cannabis availability throughout the Veteran’s Administration (here).

With the uncertain atmosphere surrounding the Tribal cannabis industry, we thought that it would be good to issue-spot some of the formative questions that a Tribal Government should be discussing as they consider new opportunities within the cannabis industry. These are not comprehensive, but hopefully they will start the conversation as you identify the primary concerns within your community.

40 Questions Tribal Governments Should Consider

Reliability Questions

1. The DOJ Policy does not legalize cannabis use or sale—it uses prosecutorial discretion to create a policy of tolerance. Does the DOJ Policy Statement mark a permanent shift in policy that you can rely on?
2. Is there a risk of that Policy changing with a Presidential or Congressional change?

Legal Questions 

3. Is your state a Public Law 280 state? How does Public Law 280 affect the legality of the business?

4. If the Tribal Government sells the cannabis in an edible form or in other packaged forms, are there other federal laws that apply?

5. If your business is enforced against, are your assets safe? How can you protect your assets from forfeiture proceedings?

6. If this DOJ industry tolerance is deemed illegal, are the contracts with vendors, consultants, and others in the cannabis business matters enforceable?

7. Is the Tribal Government willing to agree to limited waivers of sovereign immunity in your contracts?

Tribal Policy Questions

8. Many Tribal Governments take steps to protect the youth from drug paraphernalia or references in the community. Will the cannabis business confuse your message?

9. Will you allow a cannabis business advertising like shirts, pens and other things that youth can wear or take to school? Or what will your public service campaign look like for tribal youth?

10. How will you conduct Tribal drug testing of employees if you have a Tribal Code that regulates cannabis use in the Tribal Government’s jurisdiction?

11. What other employee policies will have to change in response to these Tribal laws?

12. Will employees working in the cannabis business or using the business be eligible to drive federal General Services Administration (GSA) fleet vehicles?

13. Do you have a Tribal Controlled Substances Code, and what is required to ensure your Tribal Government is being mindful of the Department of Justice (DOJ) memorandum?

14. How will this affect Tribal elders, Tribal youth, and other citizens?

15. What internal controls will you have in your businesses to control the handling of cannabis products and cash?
16. What specific steps do you need to take to regulate and then operate/allow cannabis business on the Tribal land?

17. Are you interested in marketing cannabis? Growing cannabis? Or both? These actions are very different endeavors and are treated differently by the DOJ policy.

Health and Safety Questions

18. The Tribal Government has a responsibility for public safety. How will you ensure safe grows and the safety of your firefighters, or Fire Dancers?

19. What is your security plan for the business, its facilities and operations and the employees?

20. Will you create a “cannabis card” or registration process to be able to track product flow and destination?

21. If this is a cash business, how will cash be handled? Will you allow armed guards on Tribal land?

Relationship Questions

22. Neighbors and others who have opposed gaming or economic ventures may oppose cannabis development. Who are your local adversaries and how will they complicate your business? Will they pursue the federal, county or state government to regulate you?

23. Will this affect your relationship on Capitol Hill and with Congress on any future appropriations?

24. Will this affect other federal grants or programs that you are operating which have drug testing or other behavioral requirements?

25. How will you screen those who want to do business with the Tribal government?

26. What processes are you going to use to ensure the contracting is done consistent with Tribal law and with Tribal transparency (i.e. following Request for Proposals, Native Preference, etc.)?

27. Does a cannabis business require Secretarial Approval through the Department of Interior for land use or business agreements?

28. Are any of the financing or cannabis business agreements considered management contracts under the NIGA?

29. Is there a reason to compact with the state to share in the tax revenues to ensure a “safe harbor”?

30. Will you sell products at a lower price because of lower taxation within the Tribal Governments’ jurisdiction like in tobacco sales?

31. Will you use the tax revenue for a specific health community need to offset social impacts?

32. Is this a political issue for tribal leadership that could divide the Tribal citizens or lead to political instability?

Practical Questions

33. There may be large amounts of cash that the Tribal Government cannot deposit into a bank because of current banking regulations. Where will you keep the money? Will you use armored cars? How will you handle cash and product transportation?

34. Can the cash received from the remittance of taxes be handled differently from the business profits relative to banking deposits?

35. The Tribal Government may need to create physical barriers, like bulletproof glass, at the point of sale or place where taxes are remitted in cash. What type of security will be necessary at the site to protect Tribal employees?

36. Given the cash dependency, the Tribal Government may be under increased scrutiny by the IRS and other investigative entities in the federal government. Do you want to invite this increased security? How will you prepare for such potential auditing?

37. Banking institutions have federal restrictions on deposits from “illegal” businesses. Who will you bank with now and will they accept your deposits?

38. The Tribal Government may have issues with their 401(k) provider, insurance carrier, and other benefits providers. Will these affect your insurance carrier and coverage rates?

39. This is a new industry–are the other consultants, dispensaries, and others interesting in doing business with the tribal government ethical, trustworthy and established?

40. History has shown us that new business such as gaming can be profitable for many Tribal governments, but the risk must be weighed. This industry must be approached in a similar way – with open dialogue, solid guidance, and wisdom. Who will work with you through this process?

Procopio is in a position to assist tribal governments work through these questions.

Please subscribe to our blog and you will be notified of an upcoming blog post on the: Social, Political and Cultural Ramifications of Marijuana Legalization in Indian Country.

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.

Stephanie Conduff, a Tribal citizen, works with tribal governments and citizens on Capitol Hill on issues of regulation, self-governance, and self-determination.