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Indian Nations Law Update - August 2010

August 30, 2010

Tribal Law and Order Act Becomes Law
Congress passed the Tribal Law and Order Act (TLOA or Act) on July 21, 2010, and the President signed it into law on July 29, 2010. This legislation brings accountability to the federal administration of justice in Indian country and strengthens tribal justice systems. The TLOA increases coordination and communications among federal, state, tribal, and local law enforcement agencies; reduces violent crime, sexual violence, and drug and alcohol addiction in Indian country; and increases the collection and sharing of criminal data among the different jurisdictional entities.

The TLOA mandates appointment of qualified tribal prosecutors to assist with prosecution of federal offenses committed in Indian country and appointment of at least one Assistant United States Attorney to serve as a tribal liaison in each district. Duties of a tribal liaison include coordinating prosecution of federal crimes in Indian country, addressing any backlog in the prosecution of major crimes, and conducting training sessions to improve law enforcement techniques. If the United States Attorney declines to prosecute a federal criminal law violation, the Attorney is required to coordinate the prosecution and use of evidence with tribal justice officials.

The TLOA empowers tribal law enforcement agencies and tribal governments to combat crimes in their own communities through training opportunities, initiatives to increase the number of law enforcement personnel, and access to national criminal databases. Tribal courts' sentencing authority is increased from one year to three years for any single offense. Any tribal court exercising this increased authority in a criminal case must provide the defendant with defense counsel, and the judge presiding over the case must be licensed to practice law in any jurisdiction. Tribes may request the Bureau of Prisons to accept offenders convicted in tribal courts.

Funding and grant money is available for various programs and opportunities including: summer youth programs that address substance abuse, narcotics trafficking and source eradication; law enforcement and judicial training programs; and increasing employment of tribal court personnel. Both reservation crime rates and tribal law enforcement staffing needs are considered in determining the priority of funding. Grant money is also available for construction and maintenance of jails on Indian land, development of alternatives to incarceration, and creation and implementation of tribal youth programs.

Recognizing that rates of domestic and sexual violence against American Indian and Alaskan Native women have reached epidemic proportions, the TLOA stresses prosecution and prevention of these crimes. The Act requires federal officials to notify tribal officials when a sex offender is released into Indian country from federal custody. Tribal law enforcement officials will be required to receive specialized training in interviewing victims of domestic and sexual violence and preserving evidence in hopes of increasing the conviction rate. Additionally, the TLOA requires a study to be conducted focusing on the capabilities of Indian Health Services to collect, maintain, and secure evidence from sexual assault and domestic violence incidents.

Congress Amends the Indian Arts and Crafts Act
Congress approved amendments to the Indian Arts and Crafts Act, Public Law 101-644, on July 21, 2010, and the President signed it into law on July 29, 2010.

The amendment expands the investigative and prosecutorial authority federal law enforcement officers. It authorizes any federal law enforcement officer to conduct investigations of any offense that involves the sale of goods misrepresented as an Indian product. The amendment mandates that investigative findings be referred to federal or state prosecuting authorities. It expands and reiterates the authorization for the Indian Arts and Crafts Board to refer offenses to federal law enforcement officers for investigation and to make recommendations to the U.S. Attorney General on prosecution of violations.

Finally, the amendment imposes new penalties and fines on persons convicted of violating the Indian Arts and Crafts Act. Pecuniary penalties range now from a maximum of $5,000 to $5,000,000, depending upon the extent of the offense, and a prison term not to exceed five years.

Please contact Carl Artman or Brian Pierson, on Godfrey & Kahn's Indian Nations Team, if you have questions regarding the Indian Arts and Crafts Act Amendment or the implementation of the TLOA, the impact of the TLOA on your tribal justice system, or the availability of grants associated with the new law. You may reach Carl Artman at or 414.287.9624, or Brian Pierson at or 414.287.9456.

Congress Renews Indian Country Tax Benefits
The President signed the Unemployment Compensation Extension Act into law July 22, 2010. In addition to extending unemployment benefits, the law also renews two longstanding tax incentives for Indian country economic development. The Indian Employment Credit, IRC § 38(b)(10), provides a credit against corporate taxes for a portion of qualified wages, up to $20,000, paid to an employee who is an enrolled member of an Indian tribe or the spouse of an enrolled member for services performed on a reservation if the employee also resides on or near the reservation. The amount of the credit is 20% of the excess of the current year qualified wages and qualified employee health insurance costs over the sum of the corresponding amounts paid or incurred during calendar year 1993. 26 U.S.C. § 45A (a).

The accelerated depreciation rules, I.R.C. § 168(j), apply to qualified property that is placed in service on an Indian reservation. The deductions for depreciation are larger when shorter recovery periods are used in figuring the depreciation deduction. In addition, when qualified infrastructure property is located outside the reservation and is used in connection with qualified infrastructure property within the reservation, such property is subject to the accelerated depreciation. I.R.C. § 168(j)(4)(C). Qualified infrastructure property is property that benefits the tribal infrastructure, is available to the general public, and is placed in service in connection with the active conduct of a trade or business within a reservation.


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