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

The new National Child Welfare Resource Center for Tribes has joined the federal Children's Bureau Training and Technical Assistance (T/TA) Network to assure that Tribal child welfare systems have access to the free assistance provided by the T/TA Network. The NRC4Tribes invites your input in a national Tribal Child Welfare TA Needs Assessment survey, which will help improve the quality and accessibility of child welfare services for Native communities.

You can complete this needs assessment survey online HERE, or through the NRC4Tribes website: www.NRC4Tribes.org.  Please note that the deadline to complete the NRC4Tribes TA Needs Assessment has been extended to September 7th.

We encourage you to submit your comments and forward this survey to anyone in your community who has an interest in child and family services for Native communities, including:

* Tribal leaders
* Tribal child welfare staff
* Tribal law enforcement personnel
* Tribal court personnel, health service agency staff
* Tribal community program staff
* Tribal families involved in the child welfare system
* Tribal foster parents, kinship providers, youth, community members,
* Anyone interested in Tribal child welfare services

For more information concerning the NRC4Tribes and/or the NRC4Tribes TA needs assessment, please see www.NRC4Tribes.org.
 

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"There are not enough words to say that you're sorry"

"We're hoping that this is a day of healing"

"We must heal with friendship because we are all Americans. It is important that we work together as a people"

These sentiments were heard among those gathered in Seattle recently to mark the signing of the Treaty of Point Elliott 155 years ago, wherein numerous Native American Tribes ceded land to the federal government in exchange for reservations and fishing rights.

The event was held in the same location as the original treaty signing, and the more than 200 people who gathered included a fourth-generation descendant of Chief Sealth. During the ceremony, representatives from eight Tribes performed songs and chants and dressed in period clothing. The treaty deprived generations of Native Americans of their historic rights and assets, many attendees said.  "Treaties are supposed to be the law of the land, but we owned all the land before this," said emcee Larry Campbell, a historian for the Swinomish Tribe.

Nevertheless, the attendees at the ceremony offered peace. The Rev. James Kearny, a descendant of Thomas Phelps, the commodore of the ship who enforced the treaty against Native Americans, came to offer his apologies. "When you do any reconciliation, you expect anger," Kearny said. "But we are dealing with this directly, saying, 'Teach me. Let's start again.' " 

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Federal Judge Richard Roberts has dismissed a lawsuit filed by 20 descendants of legendary Apache leader Geronimo to recover partial remains they allege were stolen by the Skull and Bones Society at Yale University.  Skull and Bones is famous for well-connected members such as both Presidents Bush, and the society's lore claims that the organization possesses Geronimo's skull.

The lawsuit alleged that Geronimo's remains were stolen in 1918 from his burial plot at Fort Sill, Oklahoma, where he died in 1909.  The decision to dismiss was based in part on the Judge's finding that the law under which the plaintiffs sought to recover the remains only applied to Native artifacts that were improperly appropriated after 1990. 

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     COMMITTEE ON NATIVE AMERICAN CONCERNS

The American Bar Association has appointed Greg Guedel, Chair of Foster Pepper’s Native American Legal Services Group, as Chair of the ABA’s national Native American Concerns Committee. The Committee works to harness the vast resources of the ABA to guide the development of federal law in support of Tribal sovereignty and self-governance, and furthers the federal trust responsibility and government-to-government relationship between Tribes and the United States. Committee members educate elected officials, the federal judiciary, and legal professionals on pressing issues of law and policy that affect Native Americans throughout the country.

“The coming decade will present both significant challenges and unprecedented opportunity for Native American communities,” Greg said. “The Native American Concerns Committee will work closely with Tribes and their partners to enhance social justice, health, economic development, and cultural preservation for all Native Americans.”

For 2010-11, Greg has set an ambitious agenda for the Committee, including:

• Creating a new electronic communications infrastructure to connect the Committee with every federally-recognized Tribe in the United States.

• Conducting global education webinars on current legal developments, featuring internationally-recognized experts on Indigenous rights issues.

• Partnering with national Native advocacy organizations to promote legal and legislative initiatives furthering Tribal political, social, and economic priorities.

• Working with law schools to develop the next generation of Native legal advocates, and connecting students with Tribes and supporting organizations to staff current legal programs.

The website for the ABA’s Native American Concerns Committee can be accessed HERE.
For more information on Foster Pepper’s Native American Legal Services Group, click HERE.

Contact Greg Guedel (206.447.8931 or guedw@foster.com) for more information.

 

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The Treasury Department is seeking comments from Tribal Governments and interested individuals regarding the ability of Tribes to issue tax-exempt bonds. This includes Tribal Economic Development Bonds (TEDBs) that were authorized by ARRA. The attached PDF document contains the Treasury Department's notice, and comments are due by September 10, 2010.

Questions posed by the Department include:

Are there any specific additional types of projects or activities beyond those allowed for State and local governments for which Indian tribal governments should be authorized (or not authorized) to use qualified tax-exempt private activity bonds (i.e., in which private business ownership, leasing, or other private business use of the bond-financed projects would be permitted) in light of their special needs or unique circumstances?

Should the limitation on use of Tribal Economic Development Bonds to finance projects that are located outside of Indian reservations be modified to address special needs or unique circumstances of Indian tribal governments?

Should consideration be given to changing the law permanently to authorize Indian tribal governments to use qualified tax-exempt private activity bonds for the same types of projects and activities as are allowed for State and local governments?

Many Tribes and their partners have chafed over the past decade as the IRS introduced, largely on a retroactive basis through its audit program, new requirements that prohibited Tribes from issuing debt on a tax-exempt basis (e.g. there could be no commercial aspects of a bond-financed project and a tribe would need to prove that numerous state and local governments had been financing similar improvements with bonds over long periods of time).

Comments can include real-life examples of projects that Tribes had to forego (or finance on a more expensive taxable basis) because the current tax laws prohibited tax-exempt financing. It may also be helpful to identify frustrations Tribes have encountered trying to use TEDBs, and debunk the myth that tribes are mainly focused on casinos.

For more information regarding how to help influence the Treasury Department to improve its Tribal bond program, contact Foster Pepper’s Jeff Nave.
 

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The long-awaited amendments to the Tribal Law and Order Act of 2009 have been completed and passed by both the House and Senate, and President Obama is expected to sign the bill into law shortly. The new law enacts numerous changes to the rules, process, and funding for the administration of justice in Tribal communities, and it specifically --

Increases the maximum authorized criminal sentence in a Tribal Court to three years, if the defendant has or is provided an attorney and other federal criminal procedure rules are followed.

Replaces the Division of Law Enforcement Services in the Department of the Interior with the Office of Justice Services in the Bureau of Indian Affairs, and sets forth duties including - (1) communicating with tribal leaders, tribal community and victims' advocates, trial justice officials, and residents of Indian land on a regular basis regarding public safety and justice concerns; (2) providing technical assistance and training to tribal law enforcement officials for gaining access to crime information databases; (3) collecting, analyzing, and reporting data on crimes in Indian country on an annual basis; (4) sharing with the Department of Justice crime data received from tribal law enforcement agencies on a tribe-by-tribe basis; and (5) submitting to the House Committee on Natural Resources and the Senate Committee on Indian Affairs a spending report on tribal public safety and justice programs and a report on technical assistance and training provided to tribal law enforcement and corrections agencies.

Directs the Secretary of the Interior to submit to Congress a long-term plan to address incarceration in Indian country.

Authorizes BIA law enforcement officers to make warrantless arrests in Indian country based on probable cause for misdemeanor offenses involving controlled substances, firearms, assaults, or liquor trafficking.

Expands requirements for reporting by federal law enforcement officers, the Federal Bureau of Investigation (FBI), and United States Attorneys to Indian tribes on decisions not to investigate or prosecute alleged violations of federal criminal law in Indian country.

Requires the Attorney General to submit annual reports to Congress on investigations and prosecutions in Indian country that were terminated or declined.

Authorizes the Attorney General to appoint tribal prosecutors and other qualified attorneys to assist in prosecuting federal crimes committed in Indian country. Requires each United States Attorney whose district includes Indian country to appoint at least one assistant United States Attorney to serve as a tribal liaison for specified purposes, including coordinating the prosecution of federal crimes that occur in Indian country, combating child abuse and domestic and sexual violence against Indians, and providing technical assistance and training on evidence gathering techniques.

Establishes in the Executive Office for United States Attorneys the position of Native American Issues Coordinator, to coordinate with United States Attorneys in prosecuting crimes in Indian country.

Directs the Secretary of Health and Human Services to: (1) establish a prescription drug monitoring program at the health care facilities of the Indian Health Service, tribal health care facilities, and urban Indian health care facilities; and (2) report to the House Committee on Natural Resources and the Senate Committee on Indian Affairs on such program.

Directs the Attorney General, in conjunction with the HHS Secretary and the Secretary of the Interior, to: (1) conduct an assessment of the capacity of federal and tribal agencies to carry out data collection and analysis relating to prescription drug abuse in Indian communities; (2) provide training to Indian health care providers and other Indian tribal officials to promote awareness and prevention of such abuse and strategies for improving agency responses to addressing it; and (3) report to the House Committee on Natural Resources and the Senate Committee on Indian Affairs on prescription drug abuse prevention activities.

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Mount Taylor, New Mexico

Thousands of feet under the sands of New Mexico lies a deposit of uranium that could revive a struggling local economy. The mining industry and residents eager for jobs see the plateau around Mount Taylor as a powerful economic opportunity. Yet for local Native Americans whose ancestors lived in the area centuries before European settlement, Mount Taylor is a central part of their culture and religion. They are fighting to ensure that archaeological sites, their cultural heritage, and water supply are protected.

Members of local Tribes stress Mount Taylor's importance to their cultural heritage, and many say mining threatens the mountain and its environs, despite industry assurances to the contrary. While state and federal agencies recognise their cultural claim to the land, the law gives them virtually no power to halt mining. "As an Indian nation, we're taught to respect mother earth, and [when] you see somebody doing that, it's like somebody putting a knife in you," said Albert Riley, a Laguna Pueblo tribal official and religious leader.

Mount Taylor - known as "Tsibina" to the Laguna and "Tsoodzil" to the Navajo - lies in the heart of the Grants mineral belt, the site of one of the richest hauls of uranium of the cold war era. For decades, Native Americans enjoyed steady work in uranium mining jobs, and the local economy was fuelled by mine workers who were well compensated for their dangerous occupation.
Beginning in the 1980s, a decades-long depression in uranium prices, provoked in part by concerns over the safety of nuclear power, closed the mines and left the area in an economic slump. However, as China and India are ramping up nuclear power programmes - and the US considers building new nuclear power plants - uranium companies hope to restart mining here. "The world is going nuclear whether the US wants to or not," says David Miller, chief executive of Strathmore Minerals, a Canadian firm seeking to mine in New Mexico. He says that if regulators hinder uranium exploration, "we won't have the high paying jobs supporting a higher quality of life for all the local people".

The area contains an estimated 341 million pounds of uranium reserves, valued at over $3.1billion. Uranium companies say mining and processing will create more than 8,000 jobs. But the promise of new jobs is not enough for members of the Acoma, Hopi, Laguna, Navajo and Zuni Nations who are wary of the effect new mining will have on the environment. The Navajo Nation banned uranium mining from land under its control, only to see a court rule last month that uranium extraction could resume on disputed territory near Church Rock, New Mexico. Industry officials say advances in mining technology and practices would preclude the ill environmental and health affects of the cold war era.

One of the principle proposed mining projects in the area would threaten ancient archaeological sites and would drill thousands of feet into land that the state of New Mexico has recognised as the Tribes' traditional cultural property. Last year, the US national trust for historic preservation listed Mount Taylor as one of the 11 most endangered historic sites in the country. Meanwhile, New Mexico has designated the mountain and its surroundings as a "traditional cultural property" and added it to a register of historic cultural lands. A coalition of mining companies and landowners are challenging that designation in court.

Still, questions about the safety and preservation efforts of the proposed mining persist. "Even if the archaeological sites are avoided by direct impacts from construction, they could be adversely affected by indirect impacts from erosion, drainage, water run-off, etc," says Michelle Ensey, a state archaeologist. "I am not convinced that the industry has put the time and research and money into mining in ways that don't impact the environment," said June Lorenzo, a Laguna lawyer. "It's irresponsible to dive in, just looking with dollar signs in our eyes, and say it'll bring employment."
 

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Native Lacrosse Players, Circa 1845

UPDATE: The State Department has now agreed to allow Iroquois players and team officials to travel under Iroquois Nation passports, which clears the way for the team's participation in the tournament.  The team still needs to catch a trans-Atlantic flight on Wednesday July 14th to compete in its first game on the 15th.

A thousand years ago, the Iroquois Nation invented the game of lacrosse. Yet despite having created the game and shared it with the world, the Iroquois may be kept out of this year’s World Championship for their sport due to U.S. visa problems.

Teams from 30 nations are scheduled to participate in the World Lacrosse Championships in England. In a positive example of international recognition of Native sovereignty, the Iroquois participate at every tournament as a sovereign nation. The problem this year is a dispute regarding the players’ passports. The 23 players have passports issued by the Iroquois Confederacy, a group of six Tribal nations stretching from upstate New York into Ontario, Canada. The U.S. government says it will let players back into the country only if they have U.S. passports. The British government, meanwhile, won't give the players entry visas if they cannot guarantee they'll be allowed to go home.

The team has been traveling on Iroquois passports for the past 20 years, and Iroquois passport-holders have been using them to go abroad since 1977, said Denise Waterman, a member of the team's board of directors. Within the last year, colleagues used their Iroquois passports to travel to Japan and Sweden, she said. In the past, U.S. immigration officials accepted the Iroquois passports when they obtained visas — including trips to Britain in 1985 and 1994, and in 2002 to Australia. The 2006 tournament was in Canada, and the team had no cross-border issues.

The new dispute can be traced to the Western Hemisphere Travel Initiative, which went into effect last year. The new rules require that Americans carry passports or new high-tech documents to cross the border. "Since they last traveled on their own passports, the requirements in terms of the kind of documents that are necessary to facilitate travel within and outside the hemisphere have changed," Crowley said. "We are trying to help them get the appropriate travel documents so they can travel to this tournament."

Iroquois team members born within U.S. borders have been offered U.S. passports, but the players refused. They see the documents as an attack on their identity, said Tonya Gonnella Frichner, a member of the Onondaga Nation who works with the team. "It's about sovereignty, citizenship and self-identification," said Frichner, who also is the North American regional representative to the U.N. Permanent Forum on Indigenous Issues.

One Iroquois player, Brett Bucktooth, said he would rather miss the tournament than travel under a U.S. passport: "That's the people we are, and that's our identity."

Today, the Iroquois team is ranked No. 4 by the Federation of International Lacrosse and represents the Haudenosaunee — an Iroquois Confederacy of the Oneida, Seneca, Mohawk, Tuscarora, Cayuga and Onondaga nations.
 

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The federal government has announced the availability of nearly $495 million in current or upcoming funding opportunities for state, local, and Tribal governments from the U.S. Department of Transportation (DOT), U.S. Department of Housing and Urban Development (HUD), U.S. Department of Agriculture (USDA), the U.S. Department of Energy (DOE), and the U.S. Environmental Protection Agency (EPA) that can be used to support climate and energy initiatives including energy efficiency, regional planning, and community education. For further information on the application process, please contact Greg Guedel.


EPA Funding for Facilitating Tribal Climate Change Adaptation Planning and Communicating Climate Change Impacts - $550,000
Application Due: July 30, 2010
Eligible Entities: States, local governments, territories, Indian tribes, and possessions of the United States, including the District of Columbia; international organizations, public and private universities and colleges, hospitals, laboratories, other public or private nonprofit institutions.

EPA announces the availability of funding to facilitate, communicate, and put in motion tribal climate change adaptation planning to respond to the projected impacts of climate change. The Agency expects to award approximately one to three cooperative agreements ranging from approximately $50,000 to $150,000 per year up to five years. EPA requests proposals to provide direct training, technical assistance, and outreach aimed at increasing and enhancing tribal expertise in adaptation planning and climate change risk communication. For more information, visit: http://www.epa.gov/air/grants_funding.html

DOE Weatherization Assistance Program - $210 million
Application Due: Ongoing to August 1, 2010
Eligible Entities: Agencies responsible for administering annual WAP formula allocation

DOE requests proposals for Weatherization Formula Grants. Weatherization Assistance Program (WAP) funds are used to increase the energy efficiency of dwellings owned or occupied by low-income persons, reduce their total residential expenditures, and improve their health and safety. WAP assists persons who are particularly vulnerable, such as the elderly; persons with disabilities; families with children; high residential energy users; and households with high energy burdens. Prime applicant eligibility is restricted to agencies responsible for administering the annual WAP formula allocation. Fifty-eight awards are anticipated. The response due date depends on the fiscal year end of the prime applicant, with range of 2/15/10 – 8/1/10.
For more info, go to:
https://www.fedconnect.net/FedConnect/?doc=DE-FOA-0000216&agency=DOE

EPA Grants and Cooperative Agreements for Greenhouse Gas Reporting Systems: Outreach to Reporting Facilities and Analysis of Greenhouse Gas Mitigation Opportunities - $2 million
Informal Notice of Intent to Apply: July 16, 2010; Application Due: August 9, 2010
Eligible Entities: States; local governments; territories; Indian tribes; and possessions of the United States, including the District of Columbia; international organizations; public and private universities and colleges; hospitals; laboratories; other public or private non-profit institutions.

EPA is soliciting proposals for communicating to affected facilities the requirements of state greenhouse gas reporting systems compared with those of U.S. EPA’s Final Mandatory Reporting of Greenhouse Gases Rule (MRR), and to identify options for how the data collected through state reporting requirements and the MRR may be used to facilitate state- and facility-based greenhouse gas programs.

For more information, visit:
http://www.epa.gov/air/grants_funding.html (RFP# EPA-OAR-CCD-10-05). A direct link to the RFP is: http://www.epa.gov/air/grants/ccd-10-05_mrr_state_grant_rfp_r1.pdf


Joint HUD and DOT Community Challenge and Transportation Planning Grants - $75 million
Pre-Application Due: July 26, 2010; Full Application Due: August 23, 2010
Eligible Entities: State and local governments, including U.S. territories, tribal governments, transit agencies, port authorities, metropolitan planning organizations, other political subdivisions of state or local governments, and multi-state or multijurisdictional groupings.

For the first time ever, DOT and HUD will join forces to award up to $75 million in funding: $35 million in TIGER (Transportation Investment Generating Economic Recovery) II Planning Grants and $40 million in Sustainable Community Challenge Grants for localized planning activities that ultimately lead to projects that integrate transportation, housing and economic development. For more information, visit:
http://www.hud.gov/offices/adm/grants/nofa10/huddotnofa.cfm

HUD Sustainable Communities Regional Planning Grant Program - $100 million
Application Due: August 23, 2010
Eligible Applicants: Multijurisdictional and multisector partnerships consisting of a consortium of government entities and non-profit partners

HUD is currently accepting applications for the Sustainable Communities Regional Planning Grant Program. This program will support metropolitan and multijurisdictional planning efforts that integrate housing, land use, economic and workforce development, transportation, and infrastructure investments in a manner that empowers jurisdictions to consider the interdependent challenges of economic competitiveness and revitalization; social equity, inclusion, and access to opportunity; energy use and climate change; and public health and environmental impact. For more information, visit http://www.hud.gov/offices/adm/grants/nofa10/scrpg.cfm 

EPA Black Carbon, Climate and Air Quality- $7 million
Application Due: September 22, 2010
Eligible Entities: State and local governments and others

The U.S. Environmental Protection Agency requests proposals for Black Carbon’s Role in Global to Local Scale Climate and Air Quality. This RFP will support areas including, but not limited to, emission source research, the global- to local-scale emissions inventory, and co-pollutants. This RFP will also support opportunities for early career projects. $7 million is expected to be available, and up to 9 awards are anticipated. For more information, contact Bryan Bloomer at bloomer.bryan@epa.gov or go to: http://www.epa.gov/ncer/rfa/2010/2010_star_blackcarbon.html. Refer to Sol# EPA-G2010-STAR-L1 and EPA-G2010-STAR-L2.
 

EDA Global Climate Change Mitigation Incentive Fund - $14.7 million
Application Due: September 30, 2010
Eligible Entities: State and local governments, nonprofit organizations

The U.S. Department of Commerce’s Economic Development Administration (EDA) advances economic growth by assisting communities experiencing chronic high unemployment and low per capita income to create an environment that fosters innovation, promotes entrepreneurship, and attracts increased private capital investment. EDA requests proposals for the following programs: Public Works, Planning, Local Technical Assistance, and Economic Adjustment Assistance. Under the Economic Adjustment Assistance program, EDA has allocated $14.7 million to the Global Climate Change Mitigation Incentive Fund, which supports projects that foster economic competitiveness while enhancing environmental quality. Proposals are being accepted and are being reviewed on an ongoing basis. For more info, including contact info, go to: http://www.grants.gov/search/search.do?mode=VIEW&oppId=48106.
 

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