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

Finding Tribal Court decisions can be challenging. There is no comprehensive source for all Tribal Courts, and many Tribes' decisions are not published at all.  This presents a significant research problem for legal practitioners and those with general interest in the decisions of Tribal Courts.

To address this information gap, the Gallagher Law Library at the University of Washington has created a Tribal Court Decisions website that provides data and links to Tribal Court decisions throughout the country.  This first-of-its-kind resource gives an overview of the published decsions that are available for review, and directions on how to access them -- an invaluable tool for everyone looking to keep current on Tribal Cort decisions.

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Wednesday, 24 March 2010 is the date for a full-day seminar on developing and operating non-profit organizations in Native communities. Presented in partnership by the Washington State Bar Association’s Indian Law Section, Washington Attorneys Assisting Community Organizations, the Native American Unit of the Northwest Justice Project, and Foster Pepper PLLC, the seminar will cover numerous topics to assist those interested in forming charitable and other non-profit organizations, including: 

• Incorporation and Other State Law Issues
  
• Application for Tax Exempt Status
  
• Compliance Issues for Public Charities
  
• Fostering Non-Profits In Indian Country
  
• Cultural Awareness In Dispute Resolution

Program and registration forms are available HERE, and podcasts of the seminar presentations will be available on this website after the program.
 

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U.S. Commerce Secretary Gary Locke has announced a $84 million Recovery Act investment to help the Northwest Open Access Network (NoaNet) deliver new and enhanced broadband capabilities to some of the more remote regions of Washington state. The grant will finance the addition of 830 miles of fiber optic cable and eight new microwave sites to NoaNet’s existing high-speed network. Among other benefits, the project plans to directly connect the Jamestown S’Klallam Tribal Center, library, and clinic, and the Shoalwater Tribal center and clinic, as well as provide connection opportunities for the Makah Tribal center and clinic.

“This critical investment will expand high-speed Internet service access to Washington libraries and hospitals, and eventually homes and businesses, helping to make them full participants in today’s 21st century information economy,” Locke said. “Having access to the Internet’s economic, health and educational benefits will help to improve the quality of life in these communities.”

The Department of Commerce’s National Telecommunications and Information Administration’s (NTIA) Broadband Technology Opportunities Program (BTOP), funded by the Recovery Act, provides grants to support the deployment of broadband infrastructure, to enhance and expand public computer centers and to encourage sustainable adoption of broadband service.

“This grant will help NoaNet take a major step forward in extending its broadband network to rural and underserved areas in Washington, including tribal centers for the Makah, Jamestown S’Klallam and Shoalwater Bay Tribes on the Olympic Peninsula,” U.S. Rep. Norm Dicks said. “This was the goal of our effort 10 years ago to make available excess BPA fiber capacity for this publicly-operated, non-profit project to drive broadband access beyond the major cities in the Northwest.”

Another Tribal broadband project currently awaiting NTIA funding is the Washington Rural Broadband Cooperative (WA-RBC), a non-profit agency started by the Tulalip Tribes. The WA-RBC project is an extremely high bandwidth initiative which delivers 10 Gb/s service to community anchor points (schools, tribal centers, libraries, and chambers of commerce), and leverages significant investments already made by the Tulalip Tribes in a data center and fiber optic infrastructure that can extend to other tribes and rural communities.
 

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When the Mohawk Council of Kahnawake began presenting eviction notices this month to 25 non-natives living on their 13,000-acre reserve just south of Montreal, it sparked an outcry from non-Native human rights activists. The Mohawk Council’s priority is to protect their language, culture, and sovereignty, but outsiders have decried the action as a racist and illegal denial of Canada’s constitutional Charter of Rights and Freedoms.

A fundamental difference in view comes from perceptions of identity: the Mohawks do not see themselves as Canadians. The Council’s laws require a person to have at least four Mohawk great grandparents to live or own property in the Mohawk reserve. Any Mohawk who marries a non-native must leave. “Everyone knows the law: if you marry out, you stay out,” says Joe Delaronde, a spokesman for the Council. “If we don’t protect who we are, we will become Canadian citizens.”

The basic philosophy is embodied in the legal terms of the Kahnawá:Ke Membership Law:

We have consistently and historically exercised the right to determine our own membership. In recent times, we have been compelled to adopt measures that were necessary to ensure our continued survival as a Kanien'kehá:ka community.

This Law is another link in the unbroken chain of our historic struggle to survive as Kanien'kehá:ka of Kahnawá:ke. This Law is the result of a lengthy period of discussion and consultation within our community. It is an expression of the will of the Kanien'kehá:ka of Kahnawá:ke and is intended to reflect the values and principles described by the Elders of our community in their statement on membership: Entsitehwahahárahne.

This Law is an affirmation of our Indigenous and Treaty rights. This Law is essential if we are to survive and to thrive as Indigenous Peoples and as Kanien'kehá:ka of Kahnawá:ke.

The Kahnawake reserve was originally set up by the French in 1716, when the Mohawks were their allies against the British. Shortly afterwards, some French traders were asked by the Tribe to leave. In the modern context, evictions of non-Natives have been spurred by the fact that First Nations receive federal money for social services only for officially registered Natives. Canada’s minister of Indian affairs has stated the evictions make him “uncomfortable”, but says he can do nothing because First Nations have the right to say who lives on reserves. The Mohawk Chiefs deny the relevance of the Charter of Rights and Freedoms, stating that their relations with non-Natives are actually governed by the Two-Row Wampum Treaty, agreed with Dutch traders in the 17th century. The Treaty called for mutual non-interference, or as the Mohawk Council spokesman stated: “We stay in our canoe and you steer yours.”
 

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(Allposters.com)

By a vote of 245-164, the United States House of Representatives has passed the Native Hawaiian Government Reorganization Act. If subsequently passed by the Senate and signed into law by the President, the Act would transfer a percentage of public-owned lands to a native Hawaiian government within the state of Hawaii. The legislation would collect some 400,000 ethnic Hawaiians scattered across the country into a newly affiliated tribe, eventually endowed with the powers of a sovereign state, including freedom from state taxes and regulations and separate police power.

"The passage of the Native Hawaiian Government Reorganization Act is an important milestone for all the people of Hawaii," said U.S. Senator Daniel K. Akaka, the bill's author. "We have a moral obligation, unfulfilled since the overthrow of Queen Liliuokalani, that we are closer to meeting today.  I am optimistic about bringing the bill to the Senate floor this year."

If enacted into law in its current form, the Act would:

Establish the U.S. Office for Native Hawaiian Relations within the Office of the Secretary of the Interior.

Establish the Native Hawaiian Interagency Coordinating Group.

Recognize the right of the Native Hawaiian people to reorganize the single Native Hawaiian governing entity to provide for their common welfare and to adopt appropriate organic governing documents.

Establish a Commission to: (1) prepare and maintain a roll of the adult members of the Native Hawaiian community who elect to participate in such reorganization; and (2) certify that the adult members of the Native Hawaiian community proposed for inclusion on the roll meet the definition of Native Hawaiian.

Outline the process for the reorganization, which includes forming a Native Hawaiian Interim Governing Council.

Reaffirm the special political and legal relationship between the United States and the Native Hawaiian governing entity upon certification required by the Secretary regarding the organic governing documents and the election of the entity's officers.

Extend federal recognition to the governing entity as the representative governing body of the Native Hawaiian people.

Authorize the United States, upon the reaffirmation of such political and legal relationship, together with the state of Hawaii, to enter into negotiations with the governing entity to lead to an agreement addressing specified matters, including the transfer of lands, natural resources, and other assets, and the protection of existing rights related to such lands or resources.

Opposition to the bill has arisen from numerous quarters. Hawaii’s Governor Linda Lingle has withdrawn her previous support and stated: “This structure will, in my opinion, promote divisiveness and litigation rather than negotiation and resolution.” During a Congressional hearing in 2009, U.S. Civil Rights Commission member Gail Heriot asked Congress: "If ethnic Hawaiians can be accorded tribal status, why not Chicanos in the Southwest? Or Cajuns in Louisiana?"
 

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Vancouver Olympic Logo; Authentic Inuit Inukshuk (Arcticvoice.org)

The ubiquitous symbol of the 2010 Winter Olympics in Vancouver, Canada comes from an ancient cultural icon and practical tool of the Inuit people – the inukshuk. An inukshuk is a stack of stones traditionally used by the Inuit of the arctic to mark anything from a hunting spot to a food cache. In 2005, the Vancouver Organizing Committee for the Olympics chose a multicolored humanoid version of an inukshuk as the games' official 2010 emblem.

That set off a flurry of commercialization that has seen the inukshuk placed on an incredible variety of products and displays, including;

Key chains, bottle openers, T-shirts, snow globes, playing cards, and rain gear for dogs

The Inukie Cookie, which lets you build your own inukshuk out of maple-flavored shortbread

The Vancouver Aquarium’s 10-foot-high inukshuk made out of 4,368 cans of sustainably fished salmon and tuna

Canadian Tire Corp.’s $38.00 inukshuk garden statue

Richmond, BC’s six-story inukshuk built from several empty cargo containers

Chocolatier Daniel’s 320-pound inukshuk made of solid Belgian chocolate

No official program exists to provide a share of inukshuk product revenue to First Nations. However, some 1,000 Inuit carvers in the arctic territory of Nunavut have been hired to make authentic inukshuit for sale at the Olympics, says Dennis Kim, head of merchandising for the Vancouver Organizing Committee. A 15½-inch statue costs around $1,880.
 

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The Justice Department has made public its plan of action, submitted to the Office of Management and Budget (OMB), to improve consultation and coordination between the Justice Department and tribal nations, as directed by President Barack Obama’s Memorandum on Tribal Consultation. The Presidential Memorandum, signed on Nov. 5, 2009, at the White House Tribal Nations Conference, directed each federal agency to submit to OMB within 90 days a plan of action to implement President Clinton’s Executive Order 13175 on Consultation and Coordination with Tribal Governments. The Justice Department’s plan was submitted to OMB on January 27, 2010.

The Justice Department’s plan, which is available HERE, identifies the steps it will take to develop a comprehensive consultation and coordination policy with tribal nations, after robust tribal input. In addition, the department’s submission makes a commitment to:

• expand the role of the Office of Tribal Justice;
• create a Tribal Nations Leadership Council to ensure ongoing communication and collaboration with tribal governments;
• convene consultations between tribal leadership and U.S. Attorneys whose jurisdictions include federally-recognized Indian tribes;
• mandate annual meetings between the department’s grants offices and tribal leadership to discuss grants policies, concerns or funding priorities;
• create a new federal-tribal taskforce to develop strategies and guidance for federal and tribal prosecutions of crimes of violence against women in tribal communities; and
• publish a progress report within 270 days of the Presidential Memorandum evaluating the implementation of these reforms.

The Justice Department’s plan of action was driven largely by input gathered from the department’s own Tribal Nations Listening Session in late October 2009 and from the department’s annual tribal consultation on violence against women, as well as from written comments submitted by tribal governments, groups and organizations to the Justice Department and tribal consultation conference calls conducted by the Office of Tribal Justice.
The department’s plan to improve consultation and coordination with tribal governments comes a month after Attorney General Eric Holder announced sweeping reforms within the department to improve safety on tribal land. The Attorney General also announced that the Justice Department’s FY 2010 appropriation included an additional $6 million for Indian Country prosecution efforts, enabling the department to bring the federal justice system closer to Indian Country. More information is avalable HERE.       

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When the Lac du Flambeau Tribe fell behind on repaying $50 million in bonds that financed its casino in northern Wisconsin, bond issuer Wells Fargo asked a federal judge to appoint a receiver to run the casino and increase payments on the debt service. After having its lawsuit dismissed in federal court on the basis of the bond agreement being an unauthorized management contract, the bank has made a motion to amend its original Complaint.

Wells Fargo respectively submits that the Court’s dismissal was contrary to Seventh Circuit precedent as well as fundamental fairness and basic due process because: (i) Wells Fargo was not granted leave to amend its Complaint to demonstrate that the defendant had waived sovereign immunity; and (ii) Wells Fargo was not permitted to present evidence and argument regarding whether the Trust Indenture was a “management contract” under the Indian Gaming Regulatory Act (“IGRA”) and its related regulations or to respond to defendant’s evidence.

Wells Fargo’s proposed amended Complaint alleges 14 causes of action against the Tribe, including breach of contract, reformation of the bonds and the indenture, restitution, unjust enrichment, fraud, negligent misrepresentation, and conversion. A copy of the amended Complaint can be accessed HERE.  The amended Complaint asks the court to grant the following relief against the Tribe and in favor of Wells Fargo:

(1) Enter a judgment against the Defendant on each Count of the Complaint and
identified above;
(2) Order Defendant to pay Plaintiff such damages as have been sustained in
consequence of Defendant’s wrongful actions;
(3) Enter a declaratory judgment on the Bonds that Defendant has repudiated and breached the Bonds and is obligated to pay the full amount of principal and
interest;
(4) Enter a declaratory judgment that the principal and interest on the Bonds has been accelerated pursuant to the terms of the Trust Indenture;
(5) Order Defendant to pay all costs and expenses, including attorneys’ fees;
(6) Reform the Indenture and the Bonds to the extent necessary to conform with the Parties’ intent; and
(7) Order Defendant to provide restitution to Plaintiff in an amount to be determined by the Court.

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The second billion-dollar tranche of Tribal Economic Development Bonds has now been allocated by the federal government, with the funding authorization being spread over 76 projects for Tribes throughout the country. The largest dollar allocation for any single project in this financing tranche is $30,000,000.00, which was authorized for five projects, with the remainder receiving smaller authorizations.

Examples of approved projects in the second allocation round include:

Campo Band of Mission Indians in California: $30,000,000.00 for Renewable Energy, Tourism, and Wastewater Facilities

Delaware Nation in Oklahoma: $27,253,437.90 for Retail, Industrial, Tourism, Housing, and Renewable Energy Facilities

Ohkay Owingeh in New Mexico: $22,913,488.65 for Refinancing, Recreational, Governmental, and Commercial Facilities

Yankton Sioux Tribe in South Dakota: $10,934,616.39 for Retail, Farming, Renewable Energy, Tourism, and Governmental Facilities

Confederated Tribes of the Umatilla Indian Reservation in Oregon: $5,330,048.86 for Health Facilities

Skokomish Indian Tribe in Washington: $1,822,436.05 for Refinancing

The complete list of Tribal projects authorized for bond issues in this second phase is available HERE.
 

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