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

Yavapai-Prescott Indian Tribe elder Ted Vaughn is suing the Tribe's Board of directors over the construction of a new administration building next to the historic home of the founders of the Tribe's reservation.

Vaughn has a personal stake in the issue: the founders, Sam and Viola Jimulla, were his grandparents, and he grew up in the house. These days, he teaches the Yavapai language in the Jimulla house in an effort to preserve the Tribe's language and culture.

Vaughn accuses the Board and Tribal planner of hiding the fact that they were going to build the huge new resource building within 20 feet of the Jimulla home, which he calls a "priceless Tribal historic and archaeological resource."

When construction started in May, the workers tore down a rock wall his grandfather built, and started work on the project that will block the panoramic views from the home.

"We placed the building in the best location possible," considering factors such as limited space, slope, etc., Tribal General Manager Jim Noe responded.

In papers filed in Tribal court, the Board says the Jimulla house is government property and Vaughn has no "personal ownership interest" in it. Vaughn had plenty of due process under the law, the Board's motion to dismiss the lawsuit states.

Vaughn is trying to violate the Board's sovereign immunity, the Board's motion adds. Vaughn accuses the Board of violating the Tribe's Law and Order Code, which states that the Tribe will protect things of historical or cultural interest from "disturbance" or "other interference." He also accuses the Board of violating another section of the code that requires building permits to show the location of the new structure in relation to neighboring lots.

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A Coquille Indian Tribe member is challenging a recent decision by the Tribal Council to allow domestic partnerships and marriages regardless of sexual orientation.

Tribal member Brady Metcalf said he believes the Marriage and Domestic Partnership Ordinance should be placed on a special tribal ballot, allowing the general council to weigh in on the topic. The general council includes every adult tribal member, of which there are about 580.

“I think it’s too big of an issue to be decided upon by six people who may or may not have their own agenda,” Metcalf said Monday.

According to Tribal Attorney Brett Kenney, the new Tribe’s policy has two objectives. First, it recognizes marriages and domestic partnerships formed in other jurisdictions, such as Tribes, states, countries and provinces, for the purposes of extending tribal spousal or domestic partner benefits.

Second, the law authorizes new marriages under tribal law between both homosexual and heterosexual couples, when at least one person is a tribal member. However, these marriages can’t be initiated until the Tribal Council adopts follow-up laws addressing divorce and child custody. Kenney said it will take at least another four to five months for these potential laws to be reviewed.

“That law has been passed ... but those marriages will not begin until we can deal with the break up of those marriages under our legal system,” Kenney said.

He added that both portions of the ordinance recognize marriages and domestic partnerships regardless of the gender of the two people involved. However, there are some restrictions, such as the two parties can’t be first cousins or any closer kin, or be under the age of 18.

Kenney said the Tribal Council adopted the ordinance following more than six meetings and workshops and about a year after tribal members raised the question of the Tribe honoring same-sex relationships involving Tribal members. The ordinance passed in a 4-2 vote. Written and verbal testimony from the general council was taken through a 90-day comment period, starting Feb. 7. Notices regarding the potential ordinances were posted at locations on tribal property including the clinic, housing authority and tribal headquarters, Kenney said. A notice also appeared in the tribal newsletter.

A petition is presently circulating that would require authorization from Tribal members for he new law to go into effect. 200 signatures are needed to place the issue on a special ballot, and Mr. Metcalf reports having collected over 25% of that number so far.

The World Link has more information on the details on the Coquille Tribe’s policy and the challenge. 

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The Tribal Council of the Yakama Nation has approved the development of a guest-worker program that would require licenses or permits for foreign workers and non-Tribal citizens working on reservation lands.

The Yakama Nation’s territory contains much fertile agricultural land that is famred by a significant force of migrant workers during the growing seasons. The size of this non-Tribal workforce presents significant tracking problems for the Nation, and the presence of undocumented workers on Nation’s 1.2 million-acre reservation presents challenges in determining whether they legally present on both US and the Nation’s territory. The guest worker program is intended to increase accountability and ensure the legality of workers laboring on the Nation’s land.

The Yakama’s guest worker proposals may be the first of its kind in Indian country, but its long-term viability is as yet uncertain. According to the federal government’s Immigration and Customs Enforcement department, Native American Tribes are typically not viewed as sovereign nations on issues of immigration law. The authority of the Yakama Nation to enforce U.S. immigration laws or implement its own is presently under review.
 

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Only days after filing an appeal of the National Labor Relations Board’s ruling ordering it to bargain with the over 2,500 dealers represented by the United Auto Workers, the Mashantucket Pequot Gaming Enterprise (Foxwoods Resort Casino) and the UAW have agreed to enter into discussions regarding a labor agreement under Tribal law.

The jurisdictional dispute over whether Tribal laws or the federal National Labor Relations Act of 1935 apply to employees on Tribal land has been waged since last November, when poker dealers at the Mashantucket Pequot Tribal Nation’s Foxwoods Resort Casino voted 1,289 – 852 to join the United Auto Workers union. The federal law is administered by the National Labor Relations Board. Mashantucket has supported employees’ right to unionize, but says they must do so under Tribal labor laws.

The dispute at Foxwoods has been watched closely by Tribes and unions across the country, as it will set a precedent for labor relations involving Tribal enterprises. Federal labor laws did not apply on sovereign Tribal land for almost 75 years after passage of the National Labor Relations Act, but in January 2007 a federal court decision upheld the NLRB’s own earlier ruling that the San Manuel Band of Mission Indians in California was subject to federal labor laws.

The San Manuel case involved a narrowly-applied definition of a casino as a commercial operation, but did not deal with the wider issue of Tribal sovereignty or Indian casinos as governmental operations that provide revenue for Tribal services – issues that may still be resolved in court if the Mashantuckets and UAW fail to reach agreement in the current talks.
 

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In a bid to assert control over law enforcement in their lands, leaders of the White Earth Band of Chippewa are seeking retrocession from Public Law 280 and are writing a new criminal code to replace state law for members of the Band.

Crossing three counties in northwest Minnesota, the White Earth Reservation has been subject to the jurisdiction of multiple non-Tribal law enforcement agencies since Public Law 280 was enacted in 1953. Minnesota is one of six states where the federal government mandated compliance with P.L. 280 on nearly all reservations. Nationwide, an estimated 70 percent of American Indian tribal members are under P.L. 280.

White Earth is seeking retrocession of the authority of P.L. 280 on the reservation, a move that will require the consent of Minnesota Governor Tim Pawlenty and approval from the federal government. The Tribe currently has a police force and a Tribal Court, and White Earth attorney Joe Plummer has stated that the Tribe never surrendered its right to judicial independence. As a result, the Tribe intends to implement its new criminal code without waiting for federal approval. “The Council plans on enacting a Tribal Criminal Code that’s been in development for two years now,” Plummer said. “Once that’s done, the officers will enforce it and individuals will be prosecuted through the Tribal Court.”

Further information can be found at White Earth Band of Chippewa.

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A year after the US government removed the Bald Eagle from the federal Endangered Species list, the Navajo Nation has guaranteed protections for the bird by adding it to the Nation’s own endangered species list. The federal government dropped the bald eagle from the Endangered Species List last year, though the national symbol remains protected under the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The Nation’s regulations also apply to golden eagles, which the Nation lists as threatened. The Navajo Department of Fish and Wildlife will take steps to implement protections for the birds and enhancement of their natural environment within the Nation’s 26,000 square miles of territory.

Information on the policies and programs may be accessed at the Navajo Department of Fish and Wildlife. 

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A pollution-control agreement between the State of Washington and cruise lines operating in the waters off Western Washington has been expanded to protect shellfish beds, and could become state law during the next year.  Coastal Tribes located near Puget Sound utilize shellfish for food, economic development activities, and cultural purposes.  The state’s prior agreement with the cruise lines allowed cruise ships to dump raw sewage near the coast, posing a significant threat to the natural habitat and the quality and quantity of Tribal shellfish harvests.

The revised agreement prohibits cruise ships carrying 250+ people from releasing sewage within 1/2 mile of commercial or Tribal shellfish beds, requires the installation of pollution monitors to detect discharges, and implements mandatory and immediate reporting requirements for improper discharges. If state lawmakers turn the agreement into law during the next legislative session, cruise ships could face fines and other penalties for not respecting the Tribal shellfish harvest.

 More information on the agreement can be found at the Northwest Indian Fisheries Commission. 

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On October 10, 2008 the President signed unanimously-approved Congressional legislation authorizing a federal loan to the White Mountain Apache Tribe for the planning and engineering of a dam and reservoir, designed to provide clean drinking water to members of the Tribe. Senate Bill 3128, the White Mountain Apache Tribe Rural Water System Loan Authorization Act, was introduced by U.S. Sen. Jon Kyl (R-Ariz.) in June and passed unanimously by the Senate on Sept. 25 and the House on Sept. 29, 2008.

The White Mountain Apache Tribe is located on the Fort Apache Indian Reservation in eastern Arizona and has approximately 15,000 members. The majority of the reservation's residents currently receive drinking water from a small well field. Well water production has significantly decreased over the last few years, leading to drinking water shortages in the hot climate. In order to meet the needs of the Tribe's growing population, a new dam and reservoir known as the Miner Flat Project will be located on the reservation to provide a long-term solution to ensure an adequate drinking water supply.

The new legislation authorizes the Secretary of Interior to provide a $9.8 million federal loan to the White Mountain Apache Tribe for the Miner Flat Project, repayable over 25 years.

The text and history of the legislation may be found via govtrack.

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On September 22, 2008 Congress passed The Fostering Connections to Success and Increasing Adoptions Act (H.R. 6893). If signed into law by President Bush, this bill will create access to Title IV-E Foster Care and Adoption Assistance program while maintaining tribal autonomy.

Under the legislation, Tribes will gain direct access to federal funds for foster care, adoption assistance, kinship guardianship placements and independent living. For each fiscal year beginning in 2009, $3 million has been set aside for technical assistance and for participating Tribes to create their own child welfare programs. There are also provisions for one-time startup grants for Tribes wishing to operate their own Title IV-E program.

The new bill would require Tribes to match funds if they enter into agreements with the federal government to perform services under Title IV-E, thereby requiring analysis by Tribes of the cost/benefit and long term economic feasibility of the programs. Officials with the National Indian Child Welfare Association helped structure the Tribal components of the bill, and leaders in both the Senate and the House focused on child welfare issues for Native American children throughout the legislative process.

Text of the bill and its legislative history may be accessed via govtrack.

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