Tag: Indian Tribes

Empowering Tribes to Address Energy Needs and Development Opportunities

U.S. Senate Committee on Indian Affairs, April 30, 2014

U.S. SENATE – Today at a U.S. Senate Committee on Indian Affairs hearing Chairman Jon Tester and Vice Chairman John Barrasso called for increased energy development on tribal lands.

The hearing was held to consider ways to improve the ability of Indian tribes to responsibly develop their natural resources, including the Indian Tribal Energy Development and Self-Determination Act Amendments of 2014 (S. 2132).  This bill is intended to remove the burdensome and lengthy approval processes that currently cause potential development partners to look elsewhere for energy projects.

In 2005, Congress enacted legislation to allow tribes to develop their energy resources without the Secretary of the Interior’s approval of individual projects, provided the tribe had an approved Tribal Energy Resource Agreement (TERA).

“Sadly, however, the Energy Policy Act has not been successful,” said Kevin Washburn, Assistant Secretary of Indian Affairs at the U.S. Department of the Interior.   Washburn added that since promulgation of the Department’s TERA regulations in 2008, the Department has not received a single TERA application.

Tester, who is working to revive the recently expired Indian Coal Production tax credit said, “Energy development has the potential to provide stable economic environments for tribes, their members and surrounding communities.   There is no entity better qualified to oversee and manage tribal resources than the tribes themselves.  We need to simplify and expedite the TERA process, but also further promote the development of alternative energy sources such as solar, biomass and hydroelectric projects.”

Barrasso said, “Energy development on tribal lands is critical for economic growth and job creation in Indian Country. By streamlining the approval process, this bill will give folks in Indian Country the tools they need to spur economic growth and create good paying jobs in their communities.”

James M. “Mike” Olguin, Acting Chairman of the Southern Ute Indian Tribal Council, said, “The tragic consequence of no approved TERAs and a continued reliance upon federal supervision has been the incredible lost opportunities to develop Indian energy resources during the period between 2005 and today.”

Michael O. Finley, Chairman of the Confederated Tribes of the Colville Reservation, said, “Potential partners and development capital sit on the sidelines because it takes years to get anything approved by the Department of the Interior.  Indian Country needs an institutionalized answer to the ongoing challenge of burdensome bureaucratic processes and delay of tribal energy leasing and permitting.”

 

Treasury issues tax guidance on per cap payments

Guidance Provides Significant Clarity, Incorporates Feedback from Tribal Nations

By US Treasury Media Release

WASHINGTON – The U.S. Department of the Treasury and Internal Revenue Service (IRS) has issued interim guidance this week regarding per capita distributions made to members of Indian tribes from funds held in trust by the Secretary of the Interior.  In response to feedback from tribal nations, the guidance clarifies that, generally, these per capita payments will not be subject to federal income tax.

Assistant Secretary for Tax Policy Mark J. Mazur will be speaking about the per capita guidance, tax-exempt bond options available to tribes, and other tribal tax initiatives during the National Congress of American Indians 2014 Executive Council Winter Session tomorrow.

“Today’s notice provides uniform, clear guidance regarding the tax treatment of per capita distributions of tribal trust assets,” said Assistant Secretary Mazur.  “This announcement and our ongoing tribal consultation process underscore the Administration’s commitment to understanding and addressing the issues facing the Native American community.”

The Department of the Interior is responsible for holding in trust certain funds on behalf of federally recognized Indian tribes.  Under the Per Capita Act of 1983, tribes are authorized to make per capita distributions from these trust accounts directly to tribal members subject to the approval of the Department of Interior.  In September 2012, Treasury and the IRS released guidance on per capita distributions from specific settlements, and have since received requests to address the tax treatment of per capita payments more broadly.

While developing this guidance, Treasury convened listening sessions and other consultations to facilitate a government-to-government dialogue between the federal government and tribes, and to understand key tribal concerns.

Treasury and IRS are issuing this notice as interim guidance to allow Indian tribes time to review and provide feedback by September 17, 2014.  Based on these comments, we will consider revisions before issuing a final notice.

For the Per Capita Distributions notice, click here.

Landmark Court Case Settled in Favor of Tribal Online Lenders

Source: Blue Earth Marketing

Louisville, Colorado—Fredericks Peebles & Morgan LLP, a national tribal law firm announced this week a victory in the state of California for two Tribal online lenders:  the Miami Tribe of Oklahoma and the Santee Sioux Nation of Nebraska.  The California Court of Appeals has affirmed the dismissal of a suit by the State of California against online lenders owned by the two federally recognized Indian tribes. The suit was an attempt by the State to shut down the sovereign Tribes’ online lending businesses and impose penalties for alleged failure to comply with the California laws governing short-term loans.

This case comes in the wake of a series of other states’ efforts to shut down various tribal lending operations around the country.  States have mounted campaigns to restrict and control tribal lending operations in their state even though federally recognized Indian Tribes are not subject to state laws in general and are regulated primarily through Federal Indian law.  This issue has gained widespread publicity around the country in the last several months.

This California case has now re-affirmed that federally recognized Indian Tribes are sovereign nations, not subject to state control.  The court decision will significantly impact other states and other Tribes throughout the country as the issue of tribal sovereignty has been under attack on many fronts over the last several years.

In this case, California claimed that loans made by the Tribes are not enforceable under California law because the Tribes are not licensed in California and the loan fees exceed California’s enforceable rates.  In a ruling issued on January 21, 2014 the Court of Appeals rebuffed the State’s claims, finding that the Tribes’ lending activities “are subject to tribal laws governing interest rates, loans and cash advance services,” and that California’s lending laws are not enforceable against the Tribal lenders.  The Court went on to find that “there can be little question” that the Tribally-owned lenders “function as arms of their respective tribes” and therefore are not subject to the jurisdiction of the State of California.

The Court observed that due to the relocation of these Tribes to remote and severely depressed regions, revenues from these loans are “essential to maintaining a functioning tribal government able to provide necessary services to the tribe’s members.”

The decision marks the second appellate court ruling in favor of these sovereign Tribal lenders in less than a month.  In December 2013, the Colorado Court of Appeals dismissed the State of Colorado’s appeal of the lower court’s nearly-identical finding that these sovereign Tribal lenders were arms of their respective Tribes and are not subject to that State’s jurisdiction.  In both the California and Colorado proceedings, the Courts affirmed the imposition of monetary sanctions against the respective states for their litigation misconduct committed during the course of the litigation.

The California Court of Appeals decision, California v MNE, Case No. B242644, may be found here.

The Miami Tribe of Oklahoma operates its sovereign lending business through MNE Services, Inc., a 100% tribally-owned subdivision and arm of the Miami Tribe. MNE Services, Inc., which is licensed and regulated by the Miami Tribe of Oklahoma, does business under the tradenames Ameriloan (www.Ameriloan.com); USFastCash (www.USFastcash.com); United Cash Loans (www.unitedcashloans.com); Advantage Cash Services (www.advantagecashservices.com); and Star Cash Processing (www.starcashprocessing.com).

The Santee Sioux Nation operates its sovereign lending business through SFS, Inc., a 100% tribally-owned subdivision and arm of the Santee Sioux Nation.  SFS, Inc., which is licensed and regulated by the Santee Sioux Nation, does business using the trade name OneClickCash (www.oneclickcash.com).

The tribal lenders were represented in both appeals by Fredericks, Peebles & Morgan, LLP.  Fredericks Peebles & Morgan LLP is dedicated to the representation of American Indian tribes and Native American organizations throughout the United States. Legal services provided by Fredericks Peebles & Morgan LLP include a wide spectrum of services related to Indian concerns in the areas of business transactions, litigation, and governmental affairs.  For more information on the firm, please visit their website at www.ndnlaw.com.