Will Coal Port Decision Hurt or Help Tribal Development?

Law360 is discussing the recent U.S. Army Corps of Engineers ruling that halted the proposed Gateway Pacific Terminal in Washington state, noting that the decision in favor of the Lummi Nation’s opposition to the project puts developers on notice that their projects may meet a similar fate if they can't reach an understanding with affected Native American tribes.

The Corps refused to issue a permit for the planned $660m+, 54 million metric ton deep water coal export terminal on the strength of the Lummi Nation's traditional fishing rights under the 1855 Treaty of Point Elliott. The Corps said the SSA Marine-controlled company promoting the project hadn't shown the project would have only a minimal impact on the tribe's usual and accustomed fishing area off the Washington coast, and that proposed mitigation measures to address the actual impact weren't sufficient.

With the decision firmly backing federal treaty rights for the Lummi and with tribes more ready than ever to enforce their prerogatives, developers have to find ways to address tribes' economic, environmental and cultural concerns or risk wasting their time and money on a failed project. Some fear the ruling could have a major chilling effect on energy projects and other proposals, but the ruling could also encourage developers to try to take advantage of the authority of tribes, who can often move the process of approving a project along more quickly than other governments, according to W. Gregory Guedel, chair of Foster Pepper PLLC's Native American practice. "Tribes with their sovereignty and what they're able to do under their treaty rights can often be extremely powerful facilitators and catalysts for economic development projects," Guedel said.


Lummi Tribe and US Army Stop World's Largest Coal Shipment Port Project


The U.S. Army Corps of Engineers has halted the development of what would be the largest coal shipment port in the world near Bellingham, Washington, upholding an appeal by the Lummi Tribe that the $700 million project would hurt treaty fishing rights.

The Gateway Pacific project, a joint venture of SSA Marine and Cloud Peak Energy, was designed to handle as many as 50 million metric tons of coal for export, mostly bound for China.
The proposal would have brought up to 487 vessels each year to the deep-water port north of Bellingham. It would receive coal brought by rail -- through Spokane, Pasco, Tacoma, Seattle and other Washington cities -- from mines in Montana and Wyoming.

In 2015, the Lummi Nation asked the Corps of Engineers to deny permits to the project, arguing that it would interfere with fishing rights to "usual and accustomed areas" guaranteed by an 1855 treaty. "I have thoroughly reviewed thousands of pages of submittals from the Lummi Nation and Pacific International Holding. I have also reviewed my staff's determination that the Gateway Pacific Terminal would have a greater than de minimus impact on the Lummi Nation's (treaty) rights, and I have determined the project is not permittable as currently proposed," said U.S. Army Corps of Engineers Seattle District Commander Col. John Buck.

"Today's victory is monumental," said Tim Ballew, chairman of the Lummi Indian Business Council. "Because of this decision, the water we rely on to feed our families, for our ceremonies and for commercial purposes remains protected. But this is more than a victory for our people. It's a victory for treaty rights."


Lauren King: "Rising Star" Defender of Tribal Rights


Foster Pepper PLLC partner Lauren J. King’s work defending the interests of Native American tribes, including securing a major fishing rights victory for a Northwestern tribe, has earned her a place among Law360's top attorneys under 40 working in the area of Native American law.

Lauren successfully defended the Quileute Indian Tribe from a six-year-long challenge seeking to restrict their access to fisheries in the Pacific Ocean off the western coast of Washington State. The Makah Indian Tribe had sought to restrict the western border of the competing tribes’ fishing boundaries from 40 miles offshore to less than 10 miles.  At the center of the dispute was a critical whiting fishery that the Quileute Tribe had been harvesting for generations and rightfully belonged to the tribe under the 1855 Treaty of Olympia, King said.

“What was at stake in that case were the promises made in the treaty of 1855 and the tribe’s cultural identity,” King said. “If we had lost that case, the history books would have been rewritten.”

To defend the tribe's fishing rights, King had to establish that the tribe’s ancestors historically fished in the disputed area at the time of the treaty’s signing, which required some creative thinking because the tribe was isolated from contact with settlers during that period and there were few historical documents to rely on, she said. The case involved nine expert witnesses and 472 exhibits on topics such as the contents of archeological middens, or trash heaps, and the ancestors’ linguistic understanding of the 1855 treaty.

U.S. District Judge Ricardo S. Martinez said in August that the tribe had used the appropriate methodology to determine the geographical coordinates of their proposed fishing boundaries. The case, known as subproceeding 09-1, is part of sprawling, decades-long litigation by the federal government filed against the state of Washington in 1971. It is currently under appeal in the Ninth Circuit.

King’s relationship with the Quileute Tribe began when she did pro bono work for the tribe as a second-year associate at another firm, which gave her her first opportunity to present an argument in court.

“I walked in and there were a lot of attorneys there from thirteen tribes,” King said. “One of the gray-haired lawyers walked up to me and said, ‘Welcome to the halibut wars.’ ”

Her representation of the tribe, now in its sixth year, taught her that Native American law could provide the foundation of a career and has encompassed a formative time during which she matured from an associate into a partner, she said.

“I’ve grown up as an attorney with the Quileute Tribe,” King said. “We’ve really just created a great working relationship where we have understanding conversations, opposing viewpoints are accepted, and we view each other as kind of a functional family.”

King has also defended the tribe from challenges to hunting rights in its territory and has advised the tribal council on governance matters, indemnification agreements and ongoing negotiations in disputes with other entities and has drafted council resolutions and tribal regulations.

King said she was drawn to Foster Pepper because the firm is unique in supporting associates' business development, which has helped her launch a practice representing clients in the casual gaming area. She also credited her success to having experienced role models, both at Foster Pepper and at previous firms.

“Strong mentors who have invested in me as a person and as an attorney has been crucial,” King said.


Florida State University Student Government Bans Native Headdress at Athletic Events


Matthew Paskert/FSView

The student government of Florida State University, whose athletic teams are named the "Seminoles", has passed a resolution banning the wearing of any Native American headdress at Florida State athletic events.  The resolution states that "the wearing of any Native American headdresses shall no longer be permitted into athletic arenas at FSU."

Headdresses usually worn and seen by those at Florida State games are closer to the cultural traditions of the Plains region tribes, such as the Sioux, rather than those of the Seminole Tribe.

The exact language of Resolution 15 is as follows:

WHEREAS: The Florida State University is responsible for cultivating and maintaining a strong relationship between the Seminole Tribe of Florida and this collegiate institution, and

WHEREAS: The Florida State University received the declaration of support from the Seminole Tribe in 2005 to use the Seminole name, logos and images, and

WHEREAS: The university seeks to ensure all images and actions used to depict the tribe are authentic and reflect what we value as an institution, and

WHEREAS: The university has agreed to not engage in any activity that does not have the approval of the Seminole Tribe of Florida, and

WHEREAS: Florida State University fans are allowed to bring headdresses that do not depict the Seminole Tribe of Florida to athletic events, and

WHEREAS: The Seminole Tribe has expressed its distaste for this appropriation of culture, therefore


The 68th Student Senate does not condone the wearing of headdresses because it inaccurately depicts the culture of the Seminole Tribe and we request that the wearing of headdresses no longer be permitted in any arena or FSU sanctioned event.


The 68th Senate requests inappropriate use of the materials as listed above, constitute a violation of the Student Code of Conduct.



NFL Team Owners Appeal "Redskins" Trademark Revocation To US Supreme Court

The owners of the Washington Redskins NFL team have petitioned the U.S. Supreme Court to hear their trademark cancellation appeal, even though the Fourth Circuit has yet to rule on the team’s case. The case challenges a June 2014 decision by the U.S. Patent and Trademark Office to revoke the trademark registrations on its controversial name.

The team filed a prejudgment petition for a writ of certiorari with the Supreme Court in part because of another petition in the similar case of Lee v. Tam, which also involves “disparaging” trademark issues. Following the cancellation of the team’s registrations by the US Patent and Trademark Office, the team appealed to a Virginia federal district court. In July 2015, that court ruled against the team and held that the restriction against registering disparaging trademarks is constitutional.

In December, a panel of judges in the Federal Circuit ruled differently in the Lee v. Tam case, declaring that the restriction on disparaging trademarks violated the First Amendment by denying the benefits of a federal trademark registration based on "unpopular speech". “Many of the marks rejected as disparaging convey hurtful speech that harms members of oft-stigmatized communities,” U.S. Circuit Judge Kimberly Moore wrote for a nine-judge majority. “But the First Amendment protects even hurtful speech.” The USPTO filed a petition for writ of certiorari from that ruling, and the Supreme Court’s decision on whether to hear the Lee v. Tam case is currently pending.


RESPECT Act Seeks To Repeal Laws Discriminating Against Native Americans

 Senator Mike Rounds with members of the Oglala Sioux and Rosebud Sioux nations (Indianz.com)

U.S. Senator Mike Rounds (R-S.D.) has introduced the Repealing Existing Substandard Provisions Encouraging Conciliation with Tribes (RESPECT) Act, which seeks to repeal 12 outdated statutes that are still part of current law related to Native American education, forcible relocation of Native American children to boarding schools, war-time status between Native Americans and the federal government, and the withholding of rations or money owed to Native Americans.

“Native Americans are currently still legally subject to a number of historically wrong laws,” said Rounds. “These statutes are a sad reminder of the hostile aggression and overt racism displayed by the early federal government toward Native Americans as the government attempted to ‘assimilate’ them into what was considered ‘modern society.’ There is no place in our legal code for such laws.

In South Dakota, which is home to nine tribes and roughly 75,000 enrolled members, we strive to work together, to constantly improve relationships and to mend our history through reconciliation and mutual respect. It is long past time to repeal these antiquated, racist statutes.”

According to Senator Rounds’ website, examples of the laws that the RESPECT Act would repeal include provisions that allow for the forced removal of Native American children from their homes to be sent to boarding schools. If their parents refused, they would be denied rations. Additionally, Native Americans can still be subject to forced labor on their reservations, as a condition of their receipt of “supplies.”


Tribes Push Congress To Pass Tribal Labor Sovereignty Act

More than 100 tribes, tribal organizations and tribal businesses have signed a letter asking the Senate to take action on the Tribal Labor Sovereignty Act. The bill (H.R.511 | S.248) would exempt tribes and their business enterprises from the National Labor Relations Act and the jurisdiction of the National Labor Relations Board. Federal, state and local governments already have these exemptions, and tribal leaders argue that Native American nations are entitled to the same status.

"By amending the NLRA to expressly treat tribal government employers and their enterprises and institutions the same as it treats state, local and federal government employers, H.R. 511 would provide corrective guidance to the NLRB and bring parity to tribal government employers across the nation," the Coalition for Tribal Sovereignty wrote. The Republican-controlled House of Representatives passed H.R.511 by a large margin last November but the bill faces opposition from the White House, labor unions and Democratic lawmakers - only 24 Democrats voted for the Act during a previous vote in November 2015.


Special Presentation: The Creek Story of Tulsa

From Tallassee, AL to Tulsey, I.T.: The Creek Story of Tulsa
Presentation by J.D. Colbert
Saturday, April 23rd, 11:00 AM

It is widely believed that the history of Tulsa only dates to 1882 with the arrival of the Frisco railroad in Tulsa. However, the history of Tulsa can actually be traced to the arrival of DeSoto at Talisi (present day Tallassee, AL) in 1541. As such, the City of Tulsa may be said to be one of the oldest cities on the North American continent.

This presentation, From Tallassee, AL to Tulsey, I.T., will tell this rich, but mostly unknown, early history of Tulsa. It is the story of the Creek founders of Tulsa-the Locvpokv Creek tribal town- and is set against the backdrop of monumental events such as the tidal wave of European immigrants to the Creek homelands in present day Georgia, Alabama and Florida; the Creek Civil War; the Trail of Tears, the U.S. Civil War; the Dawes Allotment Act and the transition of Tulsa from Creek town to Oil Capital of the World.

This special presentation will be conducted by Mr. J.D. Colbert (Muscogee-Creek/Chickasaw) one of the nation’s most recognized and foremost expert on matters related to the economic development of Indian tribes. Mr. Colbert served a White House appointment to the Board of the Community Development Financial Institutions Fund at the U.S. Treasury and he has actively assisted many Indian tribes and Native groups to start Community Development Financial Institutions.

More information regarding this unique program is available HERE.


Harry Potter Author Offends Native American Scholars With New Story



The first story of Harry Potter author J.K. Rowling's new "History of Magic in North America" series has offended some indigenous scholars and members of Native American communities. The story, which chronicles wizards from the 14th to the 17th centuries, was criticized for lumping all Native Americans into one group, appropriating their stories and "completely re-writing these traditions," in the words of Cherokee scholar-blogger Adrienne Keene.

In Rowling's story, published on the Pottermore website, wizards existed among Native American tribes, though some faced the same scrutiny and stigmatization as their European peers. Some were "skin walkers," people who could change into animal form, like the Animagi in Rowling's Harry Potter novels. "It's not 'your' world. It's our (real) Native world. And skin walker stories have context, roots, and reality," Keene wrote.

Navajo writer Brian Young added: "My ancestors didn't survive colonization so you could use our culture as a convenient prop."


US Department of Interior Allocates $3 Billion for Native Programs in 2017

Department of Interior Secretary Sally Jewell has presented Congress with the Department’s overall budget request of $13.4 billion for 2017, which earmarks nearly $3 billion for Native American programs — a $137.6 million increase above the enacted level for the 2016 budget. It asks for a $1 billion investment to support native youth education and $278 million to fund contract support costs.

Secretary Jewell stated that the budget expands economic opportunities for Native Americans and promotes responsible energy development. “It gives us the tools to help communities strengthen resilience in the face of climate change, conserve natural and cultural resources … promote a balanced approach to a safe and responsible energy development and expand opportunities for Native American communities,” Jewell said. “These areas are core to our mission and play a vital role in job creation and economic growth.”

In response to questions about the department’s priorities for Indian Country and tribal policy, Jewell identified education as being “critically important.” One-third of DOI-supported Native American schools are in “poor condition,” Jewell said, adding that the department has begun a pilot program within schools to train parents and provide youth programs to address deep, persistent issues that have led to an epidemic proportion of suicides among Native Americans. The proposed 2017 budget also strives to provide 100 percent support for contract costs with the Indian Health Service and other agencies to address concerns about funding shortfalls from tribes working to attain self-determination, Jewell said.

Congressman Raul Grijalva, D-Ariz. has stated his support for the proposed budget: “The budget requests that the secretary submitted would result in more than $10 billion in revenue flowing into the pockets of American taxpayers,” Grijalva said. “The request also includes legislative proposals that, if enacted by the Congress, would result in another $4.5 billion in revenue. In other words, if Congress just got out of the way and enacted this budget request, the department would pay for itself and have more than a billion dollars left over.”