Indian Law Articles
New Tax Fairness for Tribes and Their Members
On September 16th and 18th, the House and Senate, respectively, each passed the Tribal General Welfare Exclusion Act (H.R. 3043) and President Obama signed it into law on September 26th. The new statute amends the Internal Revenue Code to make it clear that tribal members are not to be taxed for general welfare benefits provided through tribal programs. In other words, general welfare benefits received from tribes will be treated the same, for income tax purposes, as such benefits received from a state or the federal government.
The bill also requires IRS field agents to obtain training on federal Indian law and implementation of the new statute. Under the statute, the Secretary of the Treasury is also authorized to waive any outstanding audits or penalties related to general welfare benefits received from tribes.
Who is an Indian Child Under ICWA?
The question of who is an Indian child is one of the most important issues under the Indian Child Welfare Act ("ICWA") - that is not to say it is more significant than the rest of the Act, but it is a key and paramount issue that determines whether the rest of the statute is activated. It is the first question that has to be answered in a child custody proceeding and, in that respect, is key to the Act's overall effectiveness. Unfortunately, in reality, there is a significant failure to identify Indian children under the Act - and when a child is identified as Indian, it is too often too late in the proceedings. This reality leads to an undermining of the Act's overall effectiveness and is one of the reasons we have seen little to no improvement in the rates Indian children are being removed from their homes since the ICWA was enacted. Given the importance of identifying a child as an Indian child under the Act, in practice, it is probably better to ask in every child custody proceeding from the first moment whether the child is an Indian child under the Act to ensure no Indian child is overlooked.
New Zealand Leaves Canada and U.S. as Lone Nations Opposed to Indigenous Rights
On Monday, April 27, New Zealand announced that it has officially reversed its position on the U.N. Declaration on the Rights of Indigenous Peoples. New Zealand's Minister of Maori Affairs, Pita Sharples, announced his government's approval of the Declaration at the opening session of the U.N. Permanent Forum on Indigenous Issues. With Australia signing onto the Declaration last year, Canada and the United States remain as the only states in the world who affirmatively voted against the Declaration.
Australia Endorses UN Declaration on Indigenous Rights
Fulfilling election promises, under its new Prime Minister, Kevin Rudd, Australia has officially changed its position on the United Nations Declaration on the Rights of Indigenous Peoples and signed on. In 2007 when the United Nations General Assembly adopted the declaration, Australia was one of only four countries - along with the United States, Canada, and New Zealand - that voted against the Declaration.
In re Elias L., 227 Neb. 1023 (2009) - Partner Achieves Victory for Tribal Rights Under the ICWA
In a case brought and argued by Partner, Brad Jolly, the Nebraska Supreme Court unanimously held that Indian nations can intervene and fully participate in state court proceedings subject to the Indian Child Welfare Act ("ICWA") without legal counsel regardless of state laws requiring organizations to appear in court only through an attorney.
Tribal-State Relations Book Released
Aspatore, a Thomson Reuters business, has released Emerging Issues in Tribal-State Relations: Leading Experts on Improving Government and Tribal Interactions, Interpreting Gaming Issues, and Protecting Tribal Sovereignty. The book includes articles from several authors, including Brad S. Jolly, whose article is entitled "Fighting the Continued Attacks on Tribal Sovereignty" and discusses issues related to intergovernmental relations on gaming, zoning, natural resources, and criminal jurisdiction. The book can be purchased directly from Thomson West or at many online book stores.
Partner Selected to Participate in Book
Brad Jolly has been selected to participate in writing a chapter in an upcoming book on tribal-state relations. Aspatore Books, part of Thomson Reuters, is a publisher of C-Level (CEO, CFO, CTO, CMO, Partner) books from the the most respected companies and law firms. The book is titled Inside the Minds: Emerging Issues in Tribal-State Relations and is scheduled for release in the winter of 2008.
Federal Court Decides Yankton Reservation not Disestablished
The Federal Court for the District of South Dakota has held that the Yankton Sioux Reservation has not been disestablished and remains under the jurisdiction of the Tribal and federal governments. The State of South Dakota and Charles Mix County have been arguing that the reservation was disestablished in the 1800s and, therefore, no longer exists.
Osage Nation v. Oklahoma, 10th Cir.
The 10th Circuit has dismissed the State of Oklahoma and the Oklahoma Tax Commission from a lawsuit brought by the Osage Nation to enjoin the state's collection of income tax on members of the Nation. The question in the case involves whether Osage County, which was once the Osage Reservation, constitutes Indian country and precludes Oklahoma's taxation of members' income. Oklahoma currently will only recognize Osage trust land and individual allotments as Indian country. Generally, a state cannot tax the on-reservation income of members living on-reservation.
