The Tribal Law and Order Act: Will it Help?

By: Dwight Quichua

The purpose of the Tribal Law and Order Act (“TLOA”) was to combat lawlessness found in Native American lands.  Although the TLOA is considered to be a helping hand from the United States (U.S.) Federal Government, it is suggested by David Patton in his article Tribal Law and Order Act of 2010: Breathing Life Into the Miner’s Canary that for tribal sovereignty to really work, the real solution is for all tribes to work together in addressing the issues of crime and crime prevention.

Diving into a brief history of tribal law, the Indian Reorganization Act of 1934 vested authority to tribes to establish their own constitutions.  In 1953, a change in tide resulted in Public Law 280 (P.L. 280) passed criminal jurisdiction in Indian Country to the states (Congress felt the states were in the best position to improve conditions and prevent crime in Indian Country), while taking away public funding by the federal government for law enforcement and judicial services.  The Indian Civil Rights Act of 1968 shifted the tide back, allowing states to give P.L. 280 jurisdiction back to the federal government along with forcing tribal governments to impose some civil rights, similar to the Bill of Rights, to its people.

TLOA, signed by President Obama, was the federal government’s attempt to address law enforcement problems within Indian Country.  TLOA’s provisions requires more consultation with tribal communities regarding public safety and justice, which would make prosecutors more accountable, allow U.S. Attorneys to be used in criminal prosecutions in federal court, and encourages federal courts to hold trials in Indian Country.  TLOA increases recruitment and retention efforts for tribal police by allowing officers to receive training where federal law enforcement training standards are met, increase tribal officers’ authority to arrest while on the reservation, and allow tribal officers more access to the National Criminal Information Database.  TLOA also increases tribal court sentencing authority, set a higher maximum total sentence power.  Further, the TLOA requires indigent defendants to be given competent representation (i.e., licensed attorney) and competent judges, who are sufficiently trained in criminal proceedings.  Additionally, the TLOA develops tribal juvenile codes and develops detention and treatment centers for at-risk youth, while providing grants to tribes that respond to juvenile delinquency.  Finally, the TLOA strives to address violence against women by allowing police to take proactive steps when an abuser or violent offender enters or returns to the community.

The vision of Tribal law, through the eye of one tribe (the White Earth Nation in Minnesota) is a tribal system whose power is boosted by the TLOA and in which the system deals with the offender in its entirety (i.e., arrest, rehabilitation, re-entry into society).  Besides TLOA, although a tribe may seek assistance from the federal government, it is still imperative that the tribes themselves take up the initiative to improve conditions in their lands.

With the enactment of the TLOA, it appears reduction of crimes is heading towards the right direction.  Yet, it may be too soon to tell, after only five years, what kind of legacy TLOA will leave behind.  It is obvious that more work is to be done through legislation and more cooperation between the sovereign Native American tribes and the U.S. federal government in order to co-exist and to ensure continuing amicable relationship between the parties.

Source:  David Patton, Article: Tribal Law and Order Act of 2010: Breathing Life Into the Miner’s Canary, 47 Gonz. L. Rev. 767 (2012).

Accessibility of Tribal Law

By: Shannon Pascal

The availability of Indian tribal law is an issue which continues to affect the sovereignty, long-term economic development, and social acceptance of Indian tribes.  Indian tribes are one of the three sovereign entities within the United States, but unlike the other two sovereigns–state and federal governments–Indian tribes are not required to publish their law.  In fact, for the majority of the 566 federally-recognized Indian tribes, no published law is available and no universal reporting system exists for tribes that choose to publish their law.  Thus, tribal law is largely unavailable to federal and state courts, non-Indians living within or visiting Indian country, and outsiders wishing to do business with tribes.

The consequences of tribal law’s general lack of availability are far-reaching.  Without access to tribal law, courts which might otherwise find tribal law persuasive are forced to disregard it.  A non-Indian who is subject to tribal law may find himself unable to comply with tribal law if it is not widely known or available.  Businesses may be reluctant to enter into contracts with tribes, thereby retarding economic development, if they are unable to access tribal law.  Tribes may be barred from trying criminal cases under the Tribal Law and Order Act of 2010 and the Violence Against Women Reauthorization Act of 2013 if their criminal laws and procedures are not publicly available, weakening their overall sovereignty.  Finally, misunderstandings can occur when the law is not made available, leading outsiders to believe that the tribal courts are motivated by unfair racial preferences.  Making tribal law more widely available would address many of these issues.

Unfortunately, there are several barriers to making tribal laws more widely available.  Certain tribes, for instance, fear that publishing their laws would lead to criticism, threaten the sacred nature of their culture, and embarrass those who have been the subject of legal action in the past.  More prevalent, however, is the issue of cost.  Tribal legal systems are poorly funded and many tribes simply cannot bear the costs of organizing, publishing and maintaining their laws.

As the third sovereign, Indian tribes have the extraordinary ability to write and enforce laws reflecting their own values and culture, but the effectiveness of such law is undermined by its inaccessibility.  Overcoming the barriers to the publication of tribal law will require both a cultural shift away from secrecy within certain tribes, as well as greater funding for tribal legal systems.  Over time, however, increased openness and accessibility should lead to greater tribal control and economic opportunity in Indian country.

Source:  Bonnie Shucha, “Whatever Tribal Precedent There May Be”: The (Un)availability of Tribal Law, 106 Law Libr. J. 199 (2014).

Tax-Exempt Tribe Imposes First Junk Food Tax

By: Margaret Nollau

The Navajo Nation is a Native American tribe, which encompasses a geographical area approximately the size of the state of West Virginia. Its borders cross Arizona, New Mexico and Utah. Like all other Native American tribes, the Navajo Nation is exempt from taxation by the United States Government. It is therefore ironic that it was this tax-exempt group who became the first jurisdiction in the U.S. to successfully win the battle to impose a junk food tax.

The Navajo Nation President, Ben Shelly, vetoed the legislation to impose the junk food tax three times due to concerns of how the tax would be regulated. There were worries that this tax may negatively impact small business owners and consumers. The tax gained favor among tribe members, however, and as of March 2015, junk food such as chips, soda, desserts, fried foods, and other products containing “minimal-to-no-nutritional value” sold on Navajo reservations will be slapped with a 2% sales tax. It is estimated that this new ‘sin tax’ will generate $1 million a year, which will be used for promoting greenhouses, cooking classes, community gardens, food processing and storage facilities, and farmer’s markets among other health promotions.

This new tax on junk food is partially in response to the many health concerns Native Americans face. The Indian Health Service reports that of the Navajo Nation’s 300,000 members, nearly 25,000 of them suffer from type-2 diabetes. Another 75,000 are classified as pre-diabetic. Unsurprisingly, hypertension and cardiovascular are among the health concerns facing Native Americans.

The Navajo’s tax was not the first of its kind. Mexico had previously implemented taxes on products with high fat and sugar content. As previously stated, this junk food tax is the first of its kind in the United States and only time will tell how it fares.

Source:  Robert W. Wood, Native American Tribe—With Tax Exempt Casinos—Has Nation’s First Junk Food Tax, Forbes, (Mar. 27, 2015), http://www.forbes.com/sites/robertwood/2015/03/27/native-american-tribe-with-tax-exempt-casinos-has-nations-first-junk-food-tax/.

The Cost of Entertainment: Taxing Performers in Indian Country

By: Nick Marinelli

As sovereign governments, Indian tribes have the power to levy taxes. In the same vein, states also possess the power to levy taxes on income earned within their jurisdiction. If both powers were to levy taxes on non-Indians earning income on an Indian reservation within a state’s jurisdiction, the resulting double-taxation would possibly deter future income generated in these locations. While not necessarily illegal, double taxation is a frowned-upon social policy that many entities prefer to avoid for fear of deterring future revenue streams. Athletes and entertainers, for example, are taxed both in the state in which they reside as well as the states in which they earn income. To offset this double taxation, the states in which they reside will provide tax credits in the amount paid to the other states. Under this concept, it is possible, however, to allow both powers to levy taxes and still avoid controversial policy decisions.

Historically, Indian tribes have been recognized as retaining the power to levy taxes on non-Indians earning income on their reservations. This taxation power has allowed the Indian tribes to generate revenue for the cost of providing governmental services to their people, just as the states do. While Indian sovereignty is well established, jurisprudence concerning Indian taxation laws is still in flux. The Supreme Court in Williams v. Lee established a balancing test when taxes by either entity were challenged: the State could protect its interests to the point where tribal governments would be affected in any way. This balancing test allows for both entities to protect their interests through taxation and generating revenue without adversely affecting the other in a significant way.

One jurisdiction, Connecticut, is home to the Mohegan Tribe that owns and operates the Mohegan Sun Arena in Uncasville, CT. The arena is located both on the Mohegan reservation and within the jurisdiction of Connecticut. The arena is home to both professional sports as well as entertainers from around the country. Under Connecticut tax law, performers and athletes who earn income in their state are subject to a five percent tax rate. The Mohegan tribe, while retaining the power to levy taxes on these performers, does not impose such a tax. In an effort to aid their government and economy, the Mohegan tribe would be able to levy a tax on the performers at a rate equal to or lesser than surrounding state tax rates, a commonly-held policy by many Indian tribes. Concurrently, the state of Connecticut could still impose their five percent tax rate but give the performers a tax credit in the amount that was paid to the Mohegan tribal government. While double taxation still occurs, this policy would effectuate the Williams balancing test to the extent that both entities could generate revenue without either’s interest adversely affecting the other.

All in all, the revenue generated on an Indian reservation that is within a state’s jurisdiction should be available to both entities to tax accordingly because it would not follow for one sovereignty to reap the benefits of taxes levied when both entities had a hand in the revenue’s generation.

 

Source:  Drew K. Barber, Note: The Power of Indian Tribes to Tax the Income of Professional Athletes and Entertainers who Perform in Indian Country, 41 Conn. L. Rev. 1785 (2009).