Native American Legal Update : Native American Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

The Tribal Law and Policy Institute is pleased to announce the launch of the enhanced & updated Walking on Common Ground  web resource, which provides a wealth of information on Tribal law and Tribal Court practice.

The primary focus of the website is:
* Identify and develop resources concerning tribal/state court collaboration & promising practices
* Identify and develop resources concerning Public Law 280 tribal/state court collaboration & promising practices
* Subject areas include: courts, law enforcement, detention, child welfare, and multi-agency agreements

Features of the website include:
* Tribal-State agreements by topic
* Tribal-Federal Collaborations
* Promising Practices stories and quotes
* Resources on the TLOA
* Interactive searchable map of agreements
* Listing of all federally recognized tribes, tribal websites and counties, by state
* Jurisdictional information

Upcoming features include:

* Tribal-State Court Promising Strategies Publication

* Public Law 280 Promising Strategies Publication

* Additional tribal-state collaborations in the area of Detention and Child Welfare

* Additional tribal-federal collaborations

The Tribal Law and Policy Institute welcomes your submissions of new information to add to this resource.  Please contact Heather Valdez Singleton for more information: heather@tlpi.org ; 323-650-5667.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Erik Smith/ Washington State Wire

A group representing nontribal gas station owners says the tribes get an unfair tax break that lets them beat the competition on price. Under compacts with 16 tribes, Washington state gives them a 75 percent discount from state gas taxes. There are 51 tribal gas stations in Washington, where fuel prices are consistently 7 to 12 cents a gallon less than at other stations due in part to the tax rebate. If tribes were to pay the full amount, the state would reap an additional $30 million a year to fix highways.

In 2007, the Legislature passed a law allowing Gregoire to make fuel-tax compacts with the tribes. When they buy fuel, the tribes pay the full wholesale price, including 38 cents a gallon tax upfront. The state sends them a rebate check for 75 percent of the tax.

The Automotive United Trades Organization (AUTO), which represents nontribal service stations, is suing the state. AUTO argues that the existing compacts violate the state constitution, because the 18th Amendment requires gas taxes be used only for highway purposes. The state counters that, based on court rulings, it would collect no fuel tax at all from tribes if it weren't for the compacts. Tribes are required to use the tax rebates for transportation, and often do, but details of how the money is spent are exempt from public disclosure.

"No one but the tribes know, and they will not let anyone look at their books," said Tim Hamilton, a former Grays Harbor-area station owner and executive director of AUTO. The Puyallup Tribe voluntarily posts a description of its road projects and some cost information on its website. Audit reports by the tribes are typically provided to the Department of Licensing, but those cannot be reviewed by the public or lawmakers.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

Many Native Americans are wondering about the status of the $3.4 billion Cobell settlement, and when the funds will be paid to those who are eligible.

The United States District Court for the District of Columbia granted Final Approval for the Indian Trust Settlement at the Fairness Hearing in 2011.  Final Approval will become effective and payments will be distributed once all appeals have been resolved.

There are two active appeals. The first was filed by Kimberly Craven on August 6, 2011. The other is a consolidated Appeal of Carol Eve Good Bear, Charles Columbe, and Mary Aurelia Johns who are being represented by David C. Harrison. This was filed on September 30, 2011. These appeals could collectively delay payment by one year or longer.

IF YOU HAVE QUESTIONS ABOUT COBELL SETTLEMENT PAYMENTS, YOU CAN:

Call Toll-Free: 1-800-961-6109

Email: Info@IndianTrust.com

Send a letter to: Indian Trust Settlement, P.O. Box 9577, Dublin, OH 43017-4877
 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Secretary of the Interior Ken Salazar and Assistant Secretary for Indian Affairs Larry Echo Hawk have unveiled the new Tribal Consultation Policy for the Department of the Interior, designed to launch “a new era” of enhanced communication with American Indian and Alaska Native tribes.

 “This comprehensive initiative reflects President Obama’s commitment to strengthening the government-to-government relationship between the United States and tribal nations and recognizing their fundamental right to self-governance,” Secretary Salazar said in signing a Secretarial Order implementing the departmental policy. “The new framework institutionalizes meaningful consultation so that tribal leaders are at the table and engaged when it comes to the matters that affect them.”

“Under this policy, consultation will be an open, transparent and deliberative process,” said Assistant Secretary Echo Hawk. “Forging a strong role for American Indian and Alaska Native tribes at all stages in the government’s decision-making process will benefit Indian Country and federal policy for generations to come.”

Developed in coordination with tribal leaders – including meetings in seven cities with more than 300 tribal representatives – the new policy sets out detailed requirements and guidelines for Interior officials and managers to follow to ensure they are using the best practices and most innovative methods to achieve meaningful consultation with tribes.

The policy creates a framework for synchronizing Interior’s consultation practices with its bureaus and offices by providing an approach that applies in all circumstances where statutory or administrative opportunities exist to consult with the tribes - including any regulation, rulemaking, policy, guidance, legislative proposal, grant funding formula change or operational activity that may have a substantial and direct effect on a tribe.

Interior bureaus and offices, which are required to designate one or more Tribal Liaison Officers, must examine and change their consultation policies within 180 days to ensure they are consistent with the new departmental policy. Under the policy, Interior officials will identify appropriate tribal consulting parties early in the planning process, provide the tribes a meaningful opportunity to participate in the consultation process, and participate in a manner that demonstrates a commitment and ensures continuity.

A copy of the full policy can be accessed HERE.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Robert T. Coulter (Citizen Potawatomi Nation), Executive Director of the Indian Law Resource Center, is preparing a series of articles on the United Nations Declaration on the Rights of Indigenous Peoples, and how Tribes throughout the United States are taking a lead role in its implementation. As a preface, Mr. Coulter has offered observations on current issues and efforts toward progress, excerpts from which include the following:

It has been just a year since President Obama announced the Administration’s support for the UN Declaration on the Rights of Indigenous Peoples and promised action to implement at least some of those rights. Across the country, tribal governments are seizing the Declaration and using it creatively to protect their lands and resources, and especially their rights to cultural and sacred sites.

Not surprisingly, other Indian and Alaska Native nations are using the Declaration to seek changes in federal laws and regulations, re-establish tribal jurisdiction to address violence against Native women and other crimes, regain control over Native lands and resources, and promote economic development. Obviously, tribes want to see real, concrete changes in federal laws, regulations, and policies – changes that will improve the lives of their citizens or members and assure the well-being of each tribe or nation. It is going to take a strong, national campaign by tribes to get serious, concrete changes made. Tribes will need to come together behind specific proposals for changes in administrative regulations and policies and for corrective legislation. The UN Declaration is a very useful guide for what changes are necessary. It contains dozens upon dozens of rights covering nearly every conceivable topic. Tribes are studying these detailed provisions, making strategies, and deciding what changes are most important – what elements of the Declaration to implement first.

(A) top concern almost everywhere is environmentally safe and sustainable economic development. The Declaration contains many provisions that could help tribes to gain real control of their lands and resources and overcome some of the worst barriers to development in Indian Country. The provisions in the Declaration that acknowledge tribes’ rights to self-governance, to manage their own lands and resources, and to protect their subsistence economic activities, and that prohibit discrimination against tribes and their members, will all contribute to creating a positive climate for business, investment, and economic development in Indian Country. A number of important proposals for changing federal law to give tribes a fair chance for development have been drafted by the Indian Law Resource Center with the support of the Indian Land Tenure Foundation. These are available on our website at www.indianlaw.org.

Another top priority is the protection and restoration of tribal governmental jurisdiction in order to increase the ability of tribes to prosper and survive, and especially to increase tribes’ ability to deal with the problem of violence against Native women. The UN Declaration contains more than 15 articles spelling out and protecting many aspects of tribal self-government and jurisdiction. These detailed provisions, along with the Administration’s support for them, could stop excessive interference and change the way the federal government deals with tribal governments. This could give tribal governments a greater chance for success and increase safety in all Native communities.

The protection of and access to sacred sites is yet another set of issues often raised by tribes. The Declaration acknowledges that tribes have “the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.” These provisions call for serious changes in federal law and policy. In July, the Yocha Dehe Wintun Nation and the Cortina Band of Wintun Indians used the Declaration to successfully negotiate a cultural easement on a municipal park in California. The easement, which will be permanently associated with the park, allowed the tribes to cancel the construction of bathrooms on a sacred site, and to relocate and resize a planned new parking lot so that visitor traffic will be diverted from sacred sites.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The White House has released a Progress Report detailing the actions and policies that have emerged from the Tribal Nations conference meetings conducted beginnning in 2010.  In his addresses relating to the conferences, President Obama made clear: “What matters far more than words—what matters far more than any resolution or declaration—are actions to match those words.”  The White House report states:

The Administration’s commitment to that standard of action is reflected in the many federal policies and programs discussed throughout this report that are being implemented by federal agencies in response to concerns raised by American Indians and Alaska Natives. These policies are focused on healthcare, education, public safety and economic development for American Indian and Alaska Native communities and protecting tribal lands and the environment.

You can review the entire Progress Report HERE.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Brian Bennett / Los Angeles Times

Kevin Carlos is a member of the Shadow Wolves, a team of eight American Indian trackers who stalk drug smugglers though the desolate canyons and arroyos of the Tohono O'odham Nation reservation.

"I like to think I am protecting not only the U.S. but my area as well, my home," he says.

The Shadow Wolves work for U.S. Immigration and Customs Enforcement, or ICE. To join the special unit, each officer must be at least one-quarter Native American and belong to a federally recognized tribe.

The trackers spend their days traversing the most isolated parts of the reservation, an 11,000-square-mile parcel of land in southern Arizona that shares a 73-mile border with Mexico. The nation, as it is called here, is the size of Connecticut and populated by more than 13,000 tribe members - slightly more than one per square mile.

There are no street signs and few paved roads. On the state highway, it takes three hours to drive from end to end.

The Shadow Wolves walk ridgelines, ride ATVs and roll high-powered pickups over mounds of shale and through rutted washes. They've trained their eyes to read the desert's tells:

Fresh tire tracks shimmer in sunlight.

Old footprints are crisscrossed with insect trails.

Marijuana bales leave burlap fibers on mesquite thorns.

When the U.S. Border Patrol clamped down on crossings in an area east of the reservation five years ago, smuggling rings moved their routes to the forbidding 60-mile backcountry corridor that crosses Tohono O'odham lands. Two billion dollars worth of marijuana, cocaine and heroin have moved through the reservation since then, according to ICE estimates.

The Shadow Wolves use GPS locaters, high-powered radios and other modern tools, but it is their tracking skills and their feel for the hidden box canyons, caves and seasonal watering holes that make them formidable counter-narcotics agents.

"It takes patience. These guys think they are out in the middle of nowhere, scot-free," Carlos says. "Then we find them."

For more information on the Shadow Wolves, read the LA Times article HERE.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The IRS announced the publication of Revenue Procedure 2011-56, which provides Indian Gaming Regulatory Act (IGRA) trust guidance. Under IGRA, an Indian tribe may make per capita payments to tribal members from gaming revenues if the interests of minors and other legally incompetent persons who are entitled to receive the per capita payments are protected and preserved. Indian tribes frequently use trusts to maintain and preserve the minor and incompetent members’ interests (IGRA trusts).

In 2003, the IRS released Revenue Procedure 2003-14, which provided safe harbor requirements for IGRA trusts. IGRA trusts meeting these requirements are treated as tribally-owned grantor trusts, and the per capita payments or trust earnings are not included in the beneficiaries’ incomes until actually or constructively received.

In addition to providing a safe harbor, Revenue Procedure 2003-14 sought public comments on the safe harbor requirements. After receiving and considering numerous comments, the IRS published Revenue Procedure 2011-56.  The revenue procedure:

• clarifies that an IGRA trust must be an ordinary trust (pursuant to 26 C.F.R. §301.7701-4(a)) for federal tax law purposes
• clarifies that trustees may make staggered distributions to beneficiaries at different ages or upon the occurrence of specific events rather than distributing all the trust assets when the beneficiary attains a specified age
• eliminates the references to federal and local trust law, as the validity of trusts is governed by state or tribal law
• broadens the class of survivors who may inherit a beneficiary’s trust interest
• modifies the trustee discretion provisions for making health and welfare distributions

Revenue Procedure 2011-56 supersedes Revenue Procedure 2003-14.

For more information, click HERE.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

U.S. Senate Indian Affairs Committee Chairman Daniel K. Akaka (D-Hawaii) has introduced S.1763, the Stand Against Violence and Empower Native Women (SAVE Native Women) Act. The bill would provide Indian Country with jurisdiction over non-Indians who commit crimes on Indian lands, improve the Native programs under the Violence Against Women Act (VAWA), and improve data gathering programs to better understand and respond to sex trafficking of Native women.

Senators Al Franken (D-Minnesota), Tom Udall (D-New Mexico), Daniel K. Inouye (D-Hawaii), Mark Begich (D-Alaska), Patty Murray (D-Washington), Tim Johnson (D-South Dakota), Jeff Bingaman (D- New Mexico), Jon Tester (D-Montana) and Max Baucus (D-Montana) are cosponsors of the bill.

"According to a study by the Department of Justice, two-in-five women in Native communities will suffer domestic violence, and one-in-three will be sexually assaulted in their lifetime. To make matters worse, four out of five perpetrators of these crimes are non-Indian, and cannot be prosecuted by tribal governments. This has contributed to a growing sense of lawlessness on Indian reservations and a perpetuation of victimization of Native women," said Senator Akaka.

"American Indian women suffer disproportionately from domestic violence and sexual assault, and the Violence Against Women Act must be updated to more effectively address their unique needs," said Senator Franken.

"This legislation works to ensure services are available to survivors of assault in native communities, repair a fragmented criminal justice system, and give tribes more power to prosecute those who are committing such heinous crimes against women," said Senator Udall.

"By strengthening tribal jurisdiction we are empowering our Native communities with the tools they need to fight back against instances of violence," said Senator Begich.

"We cannot let the next generation of young Native women grow up as their mothers have-in unbearable situations that threaten their security, stability, and even their lives," said Senator Akaka.

"With the introduction of this legislation, the sponsors are sending a clear message that Congress intends to build on the incredible momentum of VAWA to ensure that the epidemic of violence against Native women will end in our lifetime," said Sarah Deer, Amnesty International's Native American and Alaska Native Advisory Council Member.

"Senator Akaka's SAVE Native Women Act has the potential to restore safety and justice for American Indian and Alaska Native women. It offers American Indian tribes the opportunity to increase life-saving protections for women living within tribal jurisdiction," said Terri Henry, Co-chair of the National Congress of American Indians (NCAI) Task Force on Violence Against Women.

"This is an epidemic. It is unacceptable. And, we must stand against it," said Senator Akaka. "I am committed to working with the co-sponsors, tribal leaders, NCAI and others who diligently work to protect at-risk Native women, to pass this much needed legislation."

Senator Akaka's floor statement introducing the bill is available HERE. 

An audio file of Senator Akaka's comments is available HERE.

• Email This
• Print
• Comments
• Trackbacks
• Share Link