Why a Model Food and Agriculture Code Is Needed

In Indian CountryBy Janie Simms Hipp, J.D., LL.M. (Chickasaw) Director, Indigenous Food and Agriculture Initiative

at the University of Arkansas School of Law in Fayetteville

Acknowledgements from First Nations Development InstituteWe thank our partners at the Indigenous Food and Agriculture Initiative at the University of Arkansas, including Janie Simms Hipp, Stacy Leads and Vena A-dae Romero. Their partnership has been invaluable to advancing our goal of increasing Native food-system control in Indian Country. This report was funded by the W.K. Kellogg Foundation. We thank them for their support but acknowledge that the content presented in this report is that of the authors alone, and does not necessarily reflect the opinions of the foundation. This report was created for the exclusive use of First Nations Development Institute and the Indigenous Food and Agriculture Intuitive at the University of Arkansas. All material is copyrighted and is not intended for reprint unless permission is specifically granted by First Nations Development Institute or the Indigenous Food and Agriculture Intuitive at the University of Arkansas. Such permission is also needed for quotes of 50 words or more, or more than 400 words of material quoted from this report.

Acknowledgments and Disclaimer from the Indigenous Food and Agriculture Initiative at the University of ArkansasAs with all legal educational documents, this publication does not purport to provide individual, tailored legal advice but is instead intended to be a broad discussion of various legal issues. The Indigenous Food and Agriculture Initiative (IFAI) acknowledges and appreciates the support provided by First Nations Development Institute in the development of this publication for general discussion and use throughout Indian Country. IFAI also acknowledges the important contributions and ongoing work of Vena A-dae Romero, J.D., LL.M., a recent graduate of the LL.M. program in Agriculture and Food Law at the University of Arkansas.

About the Author

Janie Simms Hipp, J.D., LL.M. (Agricultural Law) (Chickasaw) has been a food and agriculture lawyer for more than 30 years. She serves as the founding Director of the Indigenous Food and Agriculture Initiative at the University Of Arkansas School of Law in Fayetteville, Arkansas. She and Dean Stacy Leeds, who serves as the only Native dean of a law school in the United States at present, launched this new Initiative in January 2013.

Immediately prior to returning to the University, she served for over six years in Washington, D.C., working first as a National Program Leader for farm financial management, risk management education, trade adjustment assistance, and the beginning farmer and rancher development program; then working as the Director of the Risk Management Education Division at RMA/USDA; and finally, serving as Senior Advisor for Tribal Relations to USDA Secretary Tom Vilsack. In that role, she worked across all 17 agencies of the USDA to improve tribal consultation and USDA program delivery to tribal governments, communities and individuals. She has a history of more than 30 years working directly with farmers and ranchers.

Before working in D.C., she taught for over a decade on the University of Arkansas campus, working with students and farmers and ranchers outside the classroom in the areas of agricultural law, environmental law, environmental justice, and related areas. She grew up in southeast Oklahoma, deep in the Choctaw Nation, and is a citizen of the Chickasaw Nation.

She has worked previously as an Administrative Law Judge for the Cherokee Nation and was the co-founder of the Native Women and Youth in Agriculture organization, which is a part of the Intertribal Agriculture Council. She has worked extensively across Indian Country, focusing primarily on the building of food and agriculture enterprises and assisting tribal governments with issues related to food, agriculture, rural development, nutrition and food sovereignty.

Suggested citation: Hipp, Janie. (2014). “Why a Model Food and Agriculture Code is Needed in Indian Country.” Longmont, Colorado, and Fayetteville, Arkansas: First Nations Development Institute and Indigenous Food and Agriculture Initiative at the University of Arkansas.

© 2014 First Nations Development Institute and Indigenous Food and Agriculture Initiative at the University of Arkansas

For more information, or to order additional copies of this report, please call (303) 774-7836 or email info@firstnation.org.

Why a Model Food and Agriculture Code Is Needed in Indian Country

By Janie Simms Hipp, J.D., LL.M. (Chickasaw)

Introduction

When the Indigenous Food and Agriculture Initiative (IFAI) was launched in January 2013, one of its three focus areas was offering assistance to tribal governments in adopting model food and agriculture codes to encourage and support their food and agriculture sectors. First Nations Development Institute reached out to IFAI and provided support to dig deeper into this area in order to understand what is incorporated into model food and agriculture codes, and to further clarify the need for these codes in Indian Country.

The discussion that follows is an explanation of the necessity for these codes and provides the foundation for understanding the possible breadth and scope of these codes. IFAI continues to work with tribal governments around the country to explore the needs they have for these codes, the unique nature of these codes tribe by tribe, and the nuances that must be addressed that are tribe- and location-specific.

What are Model Codes?

Model codes are used throughout the United States. They exist in the area of commercial activities (Uniform Commercial Code), probate of estates (Uniform Probate Code), the conduct of trials (Uniform Code of Evidence), and in the areas of family law, health law, business and finance, criminal law, matrimonial law and any number of other commercial and non-commercial uses. To date, the National Conference of Commissioners on Uniform State Laws (NCCUSL), which was formed in 1892 and whose purpose is to promote uniformity in laws on subjects where uniformity is deemed “desirable and practicable” (www.law.cornell.edu/uniform), have adopted more than 200 uniform laws of which at least 100 have been adopted by at least one state. Many model codes have been widely adopted either in whole or in part.

Model codes generally rest on the authority of both the federal government and the individual states to pass statutes or laws to address issues related to the general health, safety and welfare of their citizenry. Local and county governments also have power to adopt laws and ordinances to control activities within their jurisdictions. Tribes also have the inherent and sovereign authority to do so as well.

The use of model codes is nothing new and there are established mechanisms by which legal and content experts come together to establish what can be identified as uniform standards. The purpose of uniformity is to ensure that as individuals move around the country, they do so with a relative amount of security and consistency concerning most of their daily activities. And in this way, the passage of uniform codes or model codes also serves the dual purpose of ensuring that commercial activities or business relationships also have similar degrees of security and consistency over place and time.

While model codes are strongly recognized within the legal community as having high levels of utility, there are still numerous areas in which state and local jurisdictions prefer to “go their own way” and look to the model codes for guidance, but adopt measures that are uniquely suited to local needs.

Why a Food and Agriculture Code?

Every country around the world has some form of food and agriculture code. These codes are seen as an essential fabric to the support, encouragement, stabilization and growth of a thriving food and agriculture sector. Without these codes – and their related codes in the commercial and business, business organization, environmental and conservation, and related supportive subject areas – a country is literally building a food and agriculture sector on shaky ground. Just one example of this point is Slovakia.

When the Velvet Revolution or Gentle Revolution occurred at the end of 1989 that led to the separation of the Czech Republic from Slovakia (from what was previously known as Czechoslovakia), the Slovak people were left with little in the way of a comprehensive legal system. They had few commercial laws, few banking laws, no bankruptcy laws, no prompt-payment laws, no agriculture grain warehouse laws, no animal health laws, leasing laws, health laws and so on. In their transition to a market economy in their agriculture sector, the government immediately went about the business of developing these types of laws in order to ensure that their farmers, who were, for instance, harvesting grain without payment in some cases for more than 365 days, could stay in farming and provide more stability to the food sector. Without one small law – a “prompt-payment” law – farmers would not be able to put seed in the ground, tend it to harvest, harvest it and deliver the grain and have any expectation of being paid or being able to enforce failure to be paid. Perhaps they would eventually be paid; but there was no legal mechanism to require payment. They couldn’t be assured that if they planted the grain anyone would ever pay them for the grain when it was delivered to market. Without a prompt payment law and a grain warehouse system and the laws that support such a system, a farmer delivered grain to a central location but was unable to document his or her rights to the proceeds from the grain they delivered for further sale and distribution. Considering and passing “prompt payment” and grain warehouse receipt laws were necessary in order to provide support for farmers within their agriculture sector.

Other examples abound, but one thing is clear. The expression of sovereignty in food and agriculture is essential throughout the world. Without it, farmers exist as small landholders (in many cases without a legal system to secure their claims to their piece of land) with little to no safety net to ensure that their hard work and attention to the important role of feeding people is protected. Laws are essential.

When tribal governments fail to exercise their sovereignty in this specific way, they are left with either local, state, federal or international laws being the “rule of law” that then apply to their activities the minute their foods cross tribal jurisdictional boundaries or their farmers transact business away from home.

If tribes choose to pass no laws in the area of food and agriculture (which they really don’t have to do), they offer nothing in the way of protection and support to either the consumers or business partners within their boundaries, or the farmers, ranchers and food businesses within their boundaries. Some tribal governments may choose to not pass food and agriculture laws, but their business experience and consistency of action gives those they deal with a greater sense of security. Some tribal governments may choose to not pass food and agriculture laws, but their own inconsistency in word and deed will lead those within and outside their borders to consider the relationship less stable.

When tribal governments fail to act in this area, farmers, ranchers and food businesses within their borders are really just operating on their own, without a sense of the legal contours embedded in all relationships with their markets and even with the tribal government within whose boundaries they farm and ranch. When tribal food businesses send raw or finished products across jurisdictional boundaries, they must be fully aware of and familiar with the local, state, federal and international laws that affect the food they are sending to the greater world. They must comply with those laws. If a tribal food producer intends to stay within the boundaries of his or her tribe’s jurisdiction in all aspects of their production (through consumption), they could function without a comprehensive code, but there are still significant areas that

should be considered by their tribal government. The world is not a walled-off reality; farmers, ranchers and food businesses are affected by the outside world and addressing those impacts is also a role of tribal governments.

Sovereignty and Food

“We aren’t sovereign if we can’t feed ourselves” is a statement I first heard from Ross Racine of the Intertribal Agriculture Council many years ago. It is now used extensively throughout Indian Country to bring further attention to the area of food and agriculture production and hunger.

As a food and agriculture lawyer with more than 30 years of experience in this subject area both within and outside Indian Country, I would add the following: “We aren’t expressing our sovereignty in food and agriculture if our tribal governments aren’t passing food and agriculture codes.”

Every tribal government should at some time examine the subjects that fall within their own unique culture, history, traditions and current legal frameworks as it relates to food, food production and agriculture. Every tribal government has a responsibility to examine the laws and regulations of the localities and states within which they find themselves, as those state and local laws will provide important cues as to the full “lay of the land” in food and agriculture that will most specifically impact that particular tribe. Every tribal government needs to identify at least one legal advisor within its midst whose duty it is to keep abreast of changes in the area of food and agriculture policy. The creation of agriculture departments within the tribal headquarters is an important step. And every tribal government must maintain an awareness of federal and international food policy if it intends to continue to ramp up its engagement in the food sector, whether that engagement is focused solely on food sovereignty, food access for hungry citizens, or improving its available foods, all the way up to and including engaging in food production for local, regional, domestic or international consumption.

Food and agriculture are among the most heavily regulated areas of human activity and commerce and have been so since written language and before. This isn’t something new. Food and agriculture impact almost all aspects of our daily lives and governments around the world can’t seem to keep themselves from regulating in the area. And, as food becomes more and more paramount in our thinking due to rising global population and stagnant or loss of arable lands, the subject of food and agriculture will continue to be one of scrutiny and it is entirely likely that the current law and regulatory environment for food and agriculture will intensify and expand over time.

What Does a Model Code Contain at the Local Level? At the State Level? At the Federal Level?

When local and state governments consider codes addressing agricultural issues, they normally do so to accomplish a number of goals, including providing certainty to agricultural operations and the surrounding landowners. When considering the types of provisions to place within model food and agriculture-related codes at the local level, many localities consider the following:

• Traditional agricultural land-use functions of the area including considerations of odor, water use, aesthetics, and related considerations involved in agricultural operations

• Examination of existing state and federal environmental regulations and considering adaptation to changing environmental or climate circumstances

• Laying a solid planning foundation, both in the context of actions leading up to the adoption of a code and in the years following adoption of a code, so that the relevance and responses to change can be built into the code moving forward

• Providing a means for public input, both in the context of actions leading up to the adoption of a code and in the years following adoption

• Consideration of a formal permitting process for specific agricultural uses

• Incorporation of objective standards in the codes imposed upon or supporting agricultural operations

• Being proactive rather than reactive to continued changes in the food sector

• Considering density of population at present and any density possibilities that could be experienced in future years

• Building in a means to address conflict regarding uses of land for food and agricultural purposes

• Addressing a means to allow adaptation to changing local, regional and state needs

So, What Should Tribal Governments Consider in a Good Food and Agriculture Code?

With regard to the land-use characteristics normally found in food and agriculture codes, the following items are most commonly seen and should be considered by tribal governments as they examine preparation of food and agriculture codes. This is not an exhaustive list of the topics normally covered in most state legislative enactments, but provides an idea of the breadth and scope important to consider:

• Agriculture and Related Use Areas

o Rural and reservation residence location needs as they relate to proximity to agriculture

o Farmworker housing needs

o Non-farm residence needs as they relate to agriculture

o Whether residential subdivisions will be allowed in agricultural areas

o Agricultural buildings and accessory structure requirements

o Whether non-residential business structures will be allowed in agricultural areas

• Production Areas

o Row crop issues and any land-use concerns related to row crop production

o Fruit and vegetable production issues

o Setback requirements and buffer zone requirements between agricultural uses and residential or commercial uses

o Livestock production concerns, and related size and permitting requirements either to address cultural, environmental, conservation, aesthetic or related issues

o Whether certain types of production will be favored over other types of production; whether certain types will be prohibited

• Processing, Storage and Related Areas

o Meat-processing needs

o Non-meat food processing needs

o Grain elevator or grain-storage requirements

o Farm equipment needs

o Operation of machinery, vehicles, and other uses incidental to farming or ranching

• Forestry Related Areas

o Sawmill or timber processing needs

o Whether specific preferences should be given to the development of forestlands related to agricultural production

o Access to forestlands, roads, and related infrastructure

o Agro-forestry support

• Chemical use and chemical supplies including pesticides and registration requirements for use on tribal lands

o Whether specific limitations on uses of chemicals will be considered for tribal lands

• Permitted uses (general agriculture, traditional agriculture, intensive agriculture, rural residence, forestry and other uses appropriate to the tribal government); i.e., will permits be required for certain uses

o Whether exceptions or excluded uses will be identified

o Processes for obtaining permits, should they be required

• Any land development or land use standards required for certain types of agriculture and food operations (i.e., sustainable use clauses in current or future leases of tribal lands)

• Animal Issues

o Stray animal provisions

o Animal health and animal disease control

o Use of animals for food production and in food processing

o Quarantine concerns in the event of animal disease outbreaks

o Subsistence food source protections

o Traditional and ancestral animal foods and the protections related to those animals

o Vaccination and other related areas

• Plant issues (sometimes referred to as “horticulture”)

o Seeds, seed protection, seed sharing and related seed-usage requirements

o Any buffer zones required when planting various crops

o Traditional and ancestral foods and the protections related to those plants

• Use of lands for recreational purposes

• Use of lands for subsistence purposes

Many local and state communities are becoming more and more concerned with rapid loss of farmland and dramatic changes in farm and ranch uses over time. This has led to additional components of food and agriculture codes at the local and state level that incorporate such issues as:

• Environmental review of land uses

o When and under what circumstances are environmental reviews of land uses undertaken

• Resource protection

o Provisions that identify significant aesthetic or cultural local natural resources and provide in law/regulation the means to protect such resources

• Conservation easements and land trusts or other means to place permanent restrictions on the use of lands within the jurisdictional boundaries for types of purposes

• Protection of aesthetic and scenic resources and in the case of tribal governments, protection of sacred and traditional resources, including conditions of access

• Agricultural land protection, including zoning and water or wetlands protections that will ensure food and agriculture land use is protected for future generations

• Right-to-farm or other regulations protecting the rights of farmers to their means of production without worry of encroaching neighbors or other land uses.

Again, this is not an exhaustive list, but provides a launching point for further discussion. Because food and agriculture have so many connections with local land use, water, the producer and consumer, nothing can replace a detailed examination of the local needs and policy interests.

Food Safety and the 2013 Food Code Model: Special Attention

A prime example of a model code in action is in the area of food safety. The U.S. Food and Drug Administration (FDA) is the federal agency that issues the FDA Model Food Code. The food code is developed by FDA with the U.S. Department of Agriculture (USDA) and the Centers for Disease Control and Prevention (CDC). The purpose of the 2013 Food Code (and its predecessors) is to provide a blueprint for other state, local and tribal governments to adopt in the area of food safety.

The FDA has jurisdiction over food safety related to certain types of foods and also has jurisdiction to inspect food-service operations that cross state borders, operations such as food manufacturers and processors, and any food-service establishment that overlaps jurisdictions between states. The USDA is the federal agency responsible for the inspection and quality grading of meat, meat products, poultry, dairy products, eggs and egg products, and fruit and vegetables that are shipped across state lines. These two agencies, along with the CDC, are the primary federal agencies focusing on food-safety concerns.

The FDA publishes the “food code” periodically and the code serves as a model legal tool to assist local, state, tribal and other governments in providing a “scientifically sound technical and legal basis for regulating the retail and food service segment.” This comprehensive code addresses restaurants, grocery stores, institutions such as nursing homes, and other food-preparation and retail venues. It can be used by tribes to identify and maintain key food-safety rules and if a tribe uses the model code developed by FDA, they will likely incorporate provisions that are consistent with national food regulatory policy as enacted by the FDA or USDA. The 2013 Food Code is the most recent version of the code and can be found at http://www.fda.gov/food/guidanceregulation/retailfoodprotection/foodcode/ucm374275.htm.

The federal government has provided such ordinances/codes regarding food safety since the 1930s, and as science has improved over time in the detection and prevention of food-borne illnesses, the code has continued to evolve. As is noted in the 2013 Food Code, the provisions are not preemptive and do not constitute federal law or federal regulation. The code provisions are, instead, the “best advice” for a uniform system of regulation that ensures retail food safety and protection. One of the primary purposes of FDA’s passage of the food code periodically is to provide an easy means for adoption of key provisions at the state, local and tribal level without a jurisdiction needing to expend considerable repetitive and redundant legal and scientific expenses to establish and maintain parallel provisions.

Key provisions of the FDA 2013 Food Code include:

• Purpose and Definitions section identifying key terms used throughout the code

• Management of food-safety and personnel concerns relating to those working in food establishments

• HACCP – Hazard Analysis and Critical Control Point Processes

• Handling of food

• Equipment, utensils and linens requirements

• Water, plumbing and waste requirements

• Physical facility requirements

• Poisonous or toxic materials requirements

• Compliance and enforcement concerns

• Conducting risk-based inspections

• Food-processing criteria

• Food defense guidance from farm to table

Information and Data

As tribes become more involved in food and agriculture code development, they will inevitably confront the need to establish survey and land use areas, collect data on the areas they are seeking to impact, conduct surveys (land use as well as human impact use) for the lands to be addressed, and develop means by which their tribal governments can record and update the date/inventory collected. Developing and maintaining this treasure trove of data and information is critical in order to properly ground the model code in reality, as well as develop and maintain a historical context for changes to the codes in the future.

And as tribes become more involved, particularly as they implement the HEARTH Act and other previously existing federal laws that allow comprehensive leasing regulations to be put in place by tribes in the agricultural arena, they will expand the types of information they gather and maintain on the types of activities occurring on their lands. And as tribes examine the need or desirability of establishing a food and agriculture code, they will need to commit to the comprehensive examination of the nature and scope of the provisions that make sense for their people.

Conclusion

It is only through a comprehensive approach, and the “trying on” of various existing local, state and federal laws, that a tribal government can determine which of the types of model provisions currently in place in most states around the country should be adopted for a particular tribe. There is no one-size-fits-all, as is clear by the experience of states in the model code adoption arena. States adopt some provisions of existing model codes in certain subject areas, but many times they choose to craft codes that are unique to the sensibilities, culture, or temperament of their citizenry. Tribes should not adopt a “one-size-fits-all” approach either; that is not appropriate. What is appropriate is for tribal governments to undertake the deliberate and focused process necessary to ensure their citizenries are properly served by adoption of a set of comprehensive yet appropriate laws that protect, enhance and support food and agriculture activities on tribal lands.

Silence on the issue of food and agriculture codes does not imply sovereignty. Instead it implies that the tribe is acquiescing to or is, at best, simply silent on the impact of state, local and federal laws in the food and agriculture arena. Action and speaking on the issues of food and agriculture by a tribal government does, in fact, reflect a tribe’s use of its inherent sovereignty in these important areas of our lives. And more importantly, can ultimately lead to consistency, support, certainty and success in the food and agriculture sector for years to come, regardless of whether feeding people at home is their only desire or feeding people around the country or world is their goal.

Additional Resources

When tribes begin the journey of creating a model food and agriculture code a comprehensive analysis of local, state and federal laws in the various subject matters is a necessary starting point. This analysis is important in order to provide a deeper understanding of surrounding jurisdiction’s policy enactments (in food, agriculture, livestock, food safety, soils, water and related issues) and the federal context for such enactments in food and agriculture. Understanding local enactments is important as well, but is not always the initial starting point. Examination of the types of laws found in the region within which a tribe is located will provide cues as to current policy concerns. As each state takes its own unique approach to codifying agriculture and food related laws, so should a tribe. A short list of state law links is provided below only to illustrate the state-by-state differences and the uniqueness with which states display their relevant statutory approaches.

Examples of various state’s food and agriculture codes, in part or in whole:

Searchable database for all state’s codes http://www.law.cornell.edu/wex/table_agriculture

Arizona http://www.azleg.gov/ArizonaRevisedStatutes.asp?Title=3

California http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=fac

Nebraskahttp://www.nda.nebraska.gov/regulations/foods/09_food_code.pdf

Oklahoma http://www.oda.state.ok.us/ogc/laws.htm

Washington http://app.leg.wa.gov/rcw/default.aspx?Cite=15

About First Nations Development InstituteSince 1980, using a three-pronged strategy of educating grassroots practitioners, advocating for systemic change, and capitalizing Indian communities, First Nations has been working to restore Native American control and culturally-compatible stewardship of the assets they own – be they land, human potential, cultural heritage or natural resources – and to establish new assets for ensuring the long-term vitality of Native American communities. First Nations serves Native American communities throughout the United States. For more information, visit www.firstnations.org.

About the Indigenous Food and Agriculture Initiative at the University of Arkansas School of Law

The Indigenous Food and Agriculture Initiative (IFAI) at the University of Arkansas School of Law works in multi-disciplinary ways to support tribal governance in food and agriculture; business development in tribal food and agriculture; and professional and youth educational development, specifically in the areas of legal and policy issues important to the success and support of tribal food, agriculture, health, nutrition and economic development. IFAI, with generous support from First Nations Development Institute, also provides education to the next generation of food and agriculture lawyers who will serve Indian Country.

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