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Indian Nations Law Update - January 2016

January 2016

Congress extends tax breaks for Indian country 

On Dec. 18, the President signed into law the 2016 Consolidated Appropriations Act for fiscal year 2016. Features of the act important to Indian country include:

  • Extension of the Indian Employment Tax credit, accelerated depreciation for business property on Indian reservations and Indian Coal Production Tax Credit until Dec. 31, 2016;
  • Extension of the New Markets Tax Credit program until Dec. 31, 2019;
  • Permanent extension of the Low Income Housing Credit program; and
  • Extension of renewable energy tax credits, including solar and wind tax credits subject to a reduction and phase-out over the next 7-8 years.  

Godfrey & Kahn has worked extensively with tribes to take advantage of low income housing tax credits and renewable energy tax credits by partnering with taxable entities who are given the opportunity to take advantage of the credits in return for significant equity investments in tribal housing and renewable energy facilities. For more information, contact Brian Pierson at 414.287.9456 or bpierson@gklaw.com.

Supreme Court agrees to review U.S. v. Bryant 

On Dec. 14, the U.S. Supreme Court agreed to hear the government’s appeal from U.S. v. Bryant, relating to the use of tribal court convictions to obtain enhanced, repeat offender penalties in subsequent federal prosecutions. Bryant, a member of the Northern Cheyenne Tribe, had been convicted of several domestic assaults in the Northern Cheyenne Tribal Court. Bryant was not provided with an attorney and received jail time for one of the convictions. When he again offended, the United States indicted him on two counts of domestic assault by a habitual offender, in violation of 18 U.S.C. § 117(a), relying on two prior tribal court convictions for domestic abuse. 

Bryant argued that the government should not have been able to rely on the tribal court convictions because he did not have an attorney. Although the Eighth and Tenth Circuits had reached the opposite conclusion, the Ninth Circuit agreed with Bryant and reversed his conviction. U.S. v. Bryant, 792 F.3d 1042 (9th Cir. 2015). A motion to rehear the case before the entire Ninth Circuit was denied but eight dissenting judges issued an opinion explaining why they thought the three-judge panel erred. On Dec. 14, the U.S. Supreme Court agreed to hear the case. 

The question presented to the Supreme Court is “whether reliance on valid uncounseled tribal-court misdemeanor convictions to prove Section 117(a)’s predicate-offense element violates the Constitution.” In its petition for review, the Solicitor argued not only that the Ninth Circuit’s decision was wrong but also that it would impede law enforcement efforts in Indian country: “The court’s decision will impede the effective and uniform enforcement of Section 117(a) by hamstringing the prosecution of recidivist offenders like respondent, who have lengthy records of domestic assault in tribal court but have previously avoided felony-level punishment for their violence. As recognized by all members of the court of appeals panel, and eight judges who dissented from rehearing en banc, this Court’s review is warranted.”

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