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Indian Nations Law Update - January 2013

January 10, 2013

Supreme Court Agrees to Review ICWA Case
The Supreme Court on January 4th granted the petition to review the South Carolina Supreme Court's decision in Adoptive Couple v. Baby Girl. The case involves a contest over the private adoption of a child (Baby Girl) born in Oklahoma to unwed parents, including a Cherokee father (Father) and non-Indian mother (Mother). After the couple broke up during the pregnancy, Father, in response to an inquiry from Mother, text-messaged Mother that he would rather give up parental rights than pay child support. Mother decided to terminate her parental rights and give the baby up for adoption.

The adoptive parents (Adoptive Parents), residents of South Carolina, were present when Baby Girl was born September 15, 2009, and took her home with them shortly after receiving permission from Oklahoma pursuant to the Interstate Compact on Placement of Children. Adoptive Parents began adoption proceedings in North Carolina three days after Baby Girl was born but Father did not receive notice until nearly four months later, in January 2010. A process server presented Father (a soldier about to depart for Iraq), with an "Acceptance of Service and Answer," which purported to waive the 30-day waiting period, waive notice of hearing and waive any objection to the adoption, Father signed but then immediately changed his mind and sought a stay of adoption under the Servicemembers Civil Relief Act.

The Cherokee Nation, which had previously indicated that Father was not a member, later determined that he was. The South Carolina adoption petition was amended accordingly in March 2010. After establishing paternity through DNA testing, Father challenged the adoption. Adoptive Parents argued that, under South Carolina law, there was no need for Father's consent to the adoption because Father had neither lived with Mother or Baby Girl for the six months preceding the adoption nor paid child support. The South Carolina family court judge ruled that the Indian Child Welfare Act (ICWA) applied and mandated that Baby Girl be turned over to Father. After various stay motions were denied, Father returned to Oklahoma with Baby Girl on December 31, 2011. The South Carolina Supreme Court affirmed, holding that (1) Father was a "parent" under the ICWA, (2) his consent to the adoption, even if it would have been unnecessary under South Carolina law, did not meet the ICWA's procedural requirements for termination of parental rights, (3) Adoptive Parents had not demonstrated that granting custody to Father would result in "serious emotional or physical damage" to Baby Girl, as required by ICWA, and (4) South Carolina would not adopt the "Existing Indian Family" doctrine followed in certain other jurisdictions.

The issues that the Supreme Court agreed to review, as framed in Adoptive Parents' petition, are:

(1) Whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law; and

(2) Whether ICWA defines 'parent' in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

Congress Reinstates Indian Country Tax Incentives
Sections 304 and 313 of the American Taxpayer Relief Act of 2012 (the "fiscal cliff" legislation approved
January 1, 2013), revive two long-standing provisions in the tax code intended to promote economic development in Indian country. Both provisions, which had expired December 31, 2011, are renewed retroactively and will remain until December 31, 2013.

The Indian Employment Credit, IRC § 38(b) (10), provides a credit against corporate taxes for a portion of wages, up to $20,000, paid to employees where:

  1. The employee is an enrolled member of an Indian tribe or the spouse of an enrolled member of an Indian tribe.
  2. The employee performs substantially all of his or her services within an Indian reservation.
  3. While performing those services, the employee has his or her main home on or near that reservation.

Qualified health insurance costs paid on behalf of the employee also fall under qualified wages. 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.

Also renewed for another is I.R.C. § 168(j), which provides for accelerated depreciation for qualified property placed in service on an Indian reservation. Property is "qualified" if it is:

  1. Used by the taxpayer predominantly in the active conduct of a trade or business within an Indian reservation,
  2. Not used or located outside the Indian reservation on a regular basis,
  3. Not acquired (directly or indirectly) by the taxpayer from a person who is related to the taxpayer, and
  4. Not property (or any portion thereof) placed in service for purposes of conducting or housing certain gaming.

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. 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.

Both the employment tax credit and accelerated depreciation can help encourage renewable energy development and energy independence in Indian country. These provisions can lower both the development and operating costs of energy facilities if tribes partner with taxable entities in developing energy facilities.

Even more important for tribal renewable energy development, the Taxpayer Relief Act extends the production tax credit and investment tax credit for renewable energy facilities. For wind projects, these tax credits were available only for facilities that were completed by the end of last year and, for biomass, landfill gas, waste-to-energy facilities, and certain other renewable projects, only for facilities completed by the end of this year. The Act substantially extends the time frame for these tax credits (which can pay for up to 25% or more of a renewable energy facility), by requiring only that construction of facilities begin by the end of this year. The IRS will likely develop guidance soon regarding when construction on the projects must be completed but, in any event, this change in the law provides an opportunity for tribes to develop renewable energy projects now that are substantially funded by investment tax credits, if they partner with taxable partners.

In addition, tribes can potentially structure their energy development projects so that they receive value from both the investment tax credits and from grants and other incentives that tribes can receive from the federal government, state governments, and utilities. Combined these credits and grants can fund a large percentage of the energy projects.

Godfrey & Kahn works with tribes and tribal subsidiaries to take advantage of a wide array of tax incentives for economic development. For more information, contact Brian Pierson at 414-287-9456 or bpierson@gklaw.com.

Wisconsin Court of Appeals Upholds State Order Eliminating Mukwonago Mascot
On January 3rd, the Wisconsin Court of Appeals rejected a challenge to Wisconsin's mascot law. In 2010, the Wisconsin Legislature enacted Act 250, which creates a rebuttable presumption that race-based mascots, logos and nicknames promote discrimination, pupil harassment and stereotyping. Pursuant to Act 250, a Wisconsin Department of Public Instruction (DPI) examiner, following a full hearing, determined that the Mukwonago School District (District) failed to overcome the presumption with respect to its "Indians" logo and ordered the District to replace the logo. The District acquiesced but two local citizens brought an independent court challenge, purportedly under federal civil rights laws. A Waukesha county circuit court judge overturned the DPI decisions, holding that the DPI had violated the plaintiffs' Due Process rights because the hearing examiner was aware that DPI policy encouraged districts to replace their race-based logos and mascots. In Schoolcraft v. State of Wisconsin Dept. of Public Instruction, 2013 WL 28273 (Wis. App. 2013), the Wisconsin Court of Appeals reversed and reinstated the DPI's decision, holding that the plaintiffs could not ignore the judicial review provisions of Wisconsin administrative law and bring their own lawsuit where the Mukwonago District itself had chosen not to appeal the DPI ruling.

Great Lakes Intertribal Council and the Wisconsin Indian Education Association, represented by Godfrey & Kahn's Brian Pierson pro bono, filed an amicus curiae brief supporting the successful DPI position.

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