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

In a reversal of the decision of the state Court of Appeals, the Supreme Court of Washington has ruled that prohibitions entered against a Tribal member in civil court sentences can be enforced by the state on Tribal lands. In State v. Cayenne, a prohibition against the defendant’s use of gillnets for fishing in state rivers was enforced when he subsequently used a gillnet within his Tribe’s territory.

Gerald Cayenne is an enrolled member of the Chehalis Indian Tribe, which has its reservation in southwest Washington. The Chehalis Tribe enjoys an exclusive right to fish within its reservation boundaries. As a non-treaty Tribe, Chehalis members are subject to state laws when fishing on non-tribal lands. In 2005, Washington State Department of Fish and Wildlife officers alleged that Cayenne unlawfully used gillnetting in the Chehalis River while on non-tribal land. The officers arrested Cayenne, the State charged him with two counts of felony first degree unlawful use of nets to take fish, and a jury convicted him on one count.

As part of Cayenne's eight-month sentence, the trial court prohibited him from owning gillnets during the term of his sentence, on and off the reservation. Cayenne appealed, arguing the trial court exceeded its authority to impose a crime-related prohibition restricting his on-reservation behavior with respect to fishing. The appellate court agreed and vacated the crime-related prohibition as it extended "[o]r could be interpreted to extend, to fishing within the Chehalis Indian Reservation." State v. Cayenne, 139 Wn. App. 114, 124, 158 P.3d 623 (2007).

Neither party disputed the power of the trial court to impose crime-related prohibitions on non-Tribal lands. However, Cayenne argued that the trial court lacked authority to extend the prohibition to his activities within the boundaries of the Chehalis Indian Reservation. This position was based on the opinion in State v. Stritmatter, 102 Wn.2d 516, 688 P.2d 499 (1984), which held that “the non-treaty fishing rights of the Chehalis Tribe are subject only to reasonable and necessary conservation regulations and that burden is on the State to demonstrate the regulation is reasonable and necessary.” Under this standard, it was argued that the state did not meet its burden of proving a connection between Mr. Cayenne’s gillnetting and a legitimate conservation concern, and therefore the state had no legal basis for regulating Cayenne’s conduct in waters running through Chehalis lands.

The state Supreme Court rejected this approach. The Court held that :

“the crime-related prohibition on gillnets is merely a sentencing condition placed on a convicted felon (who happens to be a tribal member) for an off-reservation crime. Notwithstanding Stritmatter, the defendant was personally before the trial court and subject to its full authority, which includes crime-related prohibitions. Limiting the trial court's sentencing authority, as Cayenne requests, would create the unwanted result of permitting tribal lands to be havens for criminals avoiding justice after violating state laws. As such, we hold when sentencing a tribal member for an off-reservation crime, the trial court may impose crime-related prohibitions to the extent they serve the purpose of sentencing and the crime related-prohibitions follow the individual during the prohibition's validity.”

The Cayenne decision raises significant jurisdictional and sovereignty questions, as well as issues of basic equity. The holding extends state court authority over the conduct of Tribal members on Tribal lands, yet Tribal Courts still possess little to no legal authority to punish non-Native actors who commit crimes within Tribal territory. It also impacts federal treaty rights negotiated between the Tribes and the US government (e.g. the right of Tribes to fish their waters according to their custom), and the extent to which concurrent jurisdiction can be used as a basis for increased state control over Tribal activity.

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The Bowl - "Tlingit Potlatch Bowl carved with bear features. Used for potlatch feasts to hold salmon or other foods." by Kathryn Holt	The Rattle - "Shaman's rattle with Raven face and inlaid with abalone shell" by Kathryn Holt
The Canoe - "Canoeing in Coastal Waters" by Kathryn Holt

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Recently, Indian Country Today ran a very interesting article by Robert Coulter. Coulter discusses the anniversary of the UN Declaration while delivering a particularly important message: more must be done.

Coulter starts with a historical perspective, telling his readership that about a year ago, the international community finally recognized that indigenous peoples have a permanent right to exist as peoples, nations, cultures and societies when the U.N. General Assembly overwhelmingly adopted the U.N. Declaration on the Rights of Indigenous Peoples on September 13, 2007.

This Declaration, according to Coulter, was:

the most significant development in international human rights law in decades. International human rights law now recognizes the rights of indigenous peoples as peoples, including rights of self-determination, property and culture.

It was particularly significant because it recognized that “indigenous peoples and our governments are a permanent part of the world community and the countries where we live."

For about 300 years, though, European colonists and the U.S. didn’t see it that way, and treated Indian nations as if they would eventually disappear – in other words, Native Americans were treated as, what Coulter calls "a temporary problem."

According to Coulter, the laws and political morality of this country have been based upon and in part justified by this belief in the eventual demise and disappearance of Native nations. That is why the law, as applied to Native Americans, was shockingly discriminatory and inequitable. On that point Coulter notes:

Arbitrary rules and serious mistreatment are made to seem plausible or even appropriate if they are merely temporary. There was, and sometimes still is, an unspoken political assumption that the victims would soon be gone and require no redress.

Despite this inequity, over the years Indian nations have been growing more numerous and more strong as self-governing societies. He says:

We are not temporary by any means. And now we are finally seeing a turning of the tide as the world community has recognized Indian and other indigenous nations as permanent governments.

However, according to Coulter, there is a turning of the tide and more must be done.

We must still fight for the recognition that Indian nations are permanent governments, not temporary, vanishing entities. Unfortunately, the United States, along with Canada, New Zealand and Australia, failed to make this acknowledgment by voting against the adoption of the declaration.

According to Coulter, to see the promise of the declaration become a reality, it is important to fight for laws, policies and relationships that take into account the permanent presence of Indian nations in this country, and throughout the world, he said.

Coulter notes that Native American persons can and should use the Declaration on the Rights of Indigenous Peoples as a powerful affirmation of their rights. “Only through continued use will its provisions become our reality,” he said.

The impetus of Coulter’s article comes from his point about continuing to fight:

Perhaps most important, we must work harder than ever to pressure and persuade the United States and Canada to recognize and respect these rights. This can still be done. Winning U.S. support for these human rights will make them far more useful in this country.

The best way to continue the work, according to Coulter, is to gain U.S. support is to demand that the United States join in adopting a strong Declaration on the Rights of Indigenous Peoples in the Organization of American States.

The OAS is now negotiating a powerful American Declaration on the Rights of Indigenous Peoples much like the U.N. declaration. We must increase the pressure on the United States and other countries to respect our human rights and adopt a strong OAS American declaration. We must publicly expose and protest the continuing violation of our rights in the United States, and we must demand serious action in the OAS to finalize a strong and effective declaration supported by all countries in the Americas.

Coulter believes that carrying on the fight in this way is the best way to celebrate and honor the adoption of the U.N. Declaration on the Rights of Indigenous Peoples one year ago.

Visit OAS American Declaration for more information about the Declaration and how you can participate in this important call to do more.
 

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Members of the Southern Ute Tribe have long hunted game on the Tribe's reservation land in southwest Colorado. Starting in 2009, Tribal hunters will begin pursuing quarry further afield -- they will hunt on public lands, exercising long-dormant rights under a century-old treaty with the federal government. Under the 1874 treaty known as the Brunot agreement, the Utes relinquished 4 million acres to the United States but retained the right to hunt on the land for "so long as the game lasts and the Indians are at peace with the white people."

One hundred thirty-four years later, the Southern Utes are invoking those rights. "It's really not as much about the animals as it is wanting to protect the treaty rights and the Tribe's sovereign authority," said Steve Whiteman, the Tribe's wildlife management director. Under the agreement, Tribal members don't have to acquire a state permit to hunt on public lands, and the Tribe will serve as the regulatory body overseeing the hunter’s activities. The 1,400-member Tribe's plans have prompted opposition among non-Native hunters, who fear the Southern Utes will hunt year-round or trespass on private land.

The Los Angeles Times has more details on the plan for hunting on public lands.

Find more information about the Southern Ute Tribe.

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At a recent public hearing in Sacramento, members of the Hoopa Valley, Yurok, Karuk, Quartz Valley, Winnemem Wintu and Miwok Tribes, recreational anglers, commercial fishermen, and environmental activists came together to oppose PacifiCorp’s application for a Section 401 clean water permit needed to re-license the dams it operates on the Klamath River. The Tribes gave detailed testimony to California state water officials that the dams have resulted in significant declines in both fish populations and water quality, and advocated for the removal of the dams.

Daina Colegove, a member of the Hoopa Valley Tribe and board member of the Klamath Riverkeeper, presented a big bottle filled with toxic blue green algae that she gathered from behind Iron Gate Dam as a “gift” to the state’s review board. “We are unable to use the river for swimming because of the toxic algae and it’s getting worse every year,” she said. “We don’t want to see another fish kill like the one we had in 2002 (when over 68,000 salmon died).”

Richard Myers, a member of the Yurok Tribal Council, testified about the impact the river’s water quality has on Tribal life and customs. “We do our ceremonies, including the World Renewal Dance, on the river. Normally we would bathe in the river during our ceremonies, but the water quality has been so terrible during periods of the toxic algae heath advisory that we are forced to bathe in the creeks instead.”

Tribal members and environmental advocates have noted steep reductions in the populations of Chinook salmon, lamprey eel and candlefish in the Klamath River, which they attribute to degradation in water quality over several years. populations to the dramatic decline in water quality on the Klamath in recent years.  “The fish are important, but the Indian people are also important,” Myers stated. “My great aunt used to have a saying: when the Klamath River dies, the Yurok people will die also. Today we depend upon the river just as our ancestors did.”

The state is now reviewing the issue through a special EIR after successful legal action filed by the Klamath Riverkeeper. The EPA now lists the algal toxin Microcystin as a pollutant, and required California to regulate PacifiCorp through an EIR. This EIR will determine if the dams are issued clean water certification known as a 401 permit, or if they are removed.

For information regarding the opposition to the dam, contact Malena Marvin, outreach and science director, Klamath Riverkeeper, cell:  541-821-7260 , phone/fax: 541-488-3553.

You can find further details on the licensing hearing.

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On November 13, 2008, the Seattle office of Foster Pepper PLLC played host to a unique and far-ranging seminar entitled “Advocacy For The Native American Child – Honoring The Spirit And Intent Of The Indian Child Welfare Act”. The day-long program provided a comprehensive overview of the legal issues and cultural impacts of the federal Indian Child Welfare Act, and offered specific instruction on the legal representation of Native children in Tribal, state, and federal courts.

Seminar attendees received tremendous volume and depth of instruction from distinguished panel of legal and cultural experts from across the country. Keynote speaker Judge William A. Thorne Jr. of the Utah State Court of Appeals addressed the problems of disproportionality of Native American children in government dependency systems; University of Washington professors Lorraine Brave and Ron Whitener highlighted cultural and ethical considerations for representing Native children in the courts; a panel comprised of child advocates, foster parents, and foster care alumni discussed the practical realities of life for Native American children in the dependency system; and Justice Bobbe Bridge of the Center for Children & Youth Justice closed the program with an inspirational message on the importance of strong and capable advocacy for the rights and welfare of Native children.

In addition to the live presentations, the seminar unveiled the new Indian Child Welfare Act practitioner’s desk book and digital training guide, produced by Foster Pepper attorneys in partnership with King County CASA. These resources give attorneys and advocates practical tools and guidance for effective representation of Native American children in dependency actions. Podcasts and video links for the presentations, along with copies of the program materials and desk book resources, will be accessible via this website

PRESENTATIONS
(Presentations are in Adobe PDF format and require Adobe Acrobat Reader.)

• Dependency Law 
  Heidi L. Nagel | King County CASA
• Cultural Competency - Spirit of ICWA
  Lorraine Brave | University of Washington
• ICWA in the 21st Century: Introduction to the ICWA Child Advocate Practice Manual and Resource Guide
  Tom Tremaine | Northwest Justice Project
• Advocacy for Native American Children: Disproportionality in the Child Welfare System
  Judge William A. Thorne, Jr. | Utah State Court of Appeals
• Ethics - Ethical Advocacy for Native American Children
  Professor Ron Whitener | Foster Pepper PLLC

 PODCAST - AUDIO
(Audio files are in .mp3 format and require an Audio player or you can listen via iTunes.)

• Listen to Dependency Law
  Heidi L. Nagel | King County CASA  
• Listen to Cultural Competency - Spirit of ICWA
  Lorraine Brave | University of Washington
• Listen to ICWA in the 21st Century: Introduction to the ICWA Child Advocate Practice Manual and Resource Guide
  Tom Tremaine | Northwest Justice Project
• Listen to Advocacy for Native American Children: Disproportionality in the Child Welfare System
  Judge William A. Thorne, Jr. | Utah State Court of Appeals
• Listen to Ethics - Ethical Advocacy for Native American Children
  Professor Ron Whitener | Foster Pepper PLLC  
• Listen to Inspirational Message
  Justice Bobbe Bridge | Center for Children & Youth

Listen to all the audio files and subscribe to the RSS feed.

 PODCAST - VIDEO
(Video files are in .m4v format and require QuickTime.)

• Watch Dependency Law
  Heidi L. Nagel | King County CASA
• Watch Cultural Competency - Spirit of ICWA
  Lorraine Brave | University of Washington
• Watch ICWA in the 21st Century: Introduction to the ICWA Child Advocate Practice Manual and Resource Guide
  Tom Tremaine | Northwest Justice Project
• Watch Advocacy for Native American Children: Disproportionality in the Child Welfare System
  Judge William A. Thorne, Jr. | Utah State Court of Appeals
• Watch Advocating for Children in the Dependency System - Panel
  Florence Kay Fiddler-Lovell | Casey Family Programs
  Charles Goodwin | IWASIL Boys and Girls Club
  Raven Heavy Runner | DCFS
  Jane Soder | CASA
  Carolyn Hartness | Seventh Generation
  Greg Guedel | Foster Pepper PLLC
• Watch Ethics - Ethical Advocacy for Native American Children
  Professor Ron Whitener | Foster Pepper PLLC
• Watch Inspirational Message
  Justice Bobbe Bridge | Center for Children & Youth

Watch all the video files and subscribe to the RSS feed.

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On September 17, 2008, the Tribal Council of the Turtle Mountain Band of Chippewa Indians enacted a resolution outlawing abortion on the Tribe’s reservation. The resolution states in pertinent part:

…(A)bsolutely under no circumstances will abortions be performed and allowed within any private or public facility within the boundaries of the Turtle Mountain Indian Reservation and other lands under the jurisdiction of the Tribe.

The governing body faithfully believes that life is sacred and begins at the moment of conception between a man and a woman and life to be protected at all levels affirming natural law and reasoning… pro-life is a universal issue of common sense, moral righteousness for the common good of life.

Located near Belcourt, North Dakota, the Tribe’s reservation covers over 140,000 acres and the Tribe has over 30,000 enrolled members. Besides the Turtle Mountain reservation, the resolution would affect the community of Trenton, on tribal trust land in northwestern North Dakota. The area has only one hospital and clinic: the Quentin N. Burdick Memorial Health Facility, which is run by Indian Health Services. In general, the IHS is required to follow federal law, and federal facilities are not subject to Tribal resolutions. Neither the Bureau of Indian Affairs or the Indian Health Service has yet received or ratified the Turtle Mountain resolution.

You can find additional insight on the resolution via Indian Country Today.

Find more information regarding the Turtle Mountain Band of Chippewa Indians. 

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With assistance from the local representative in Congress, the Hoh Tribe in northwest Washington state is seeking to relocate its reservation to higher ground on the Olympic Peninsula. On September 25, 2008, U.S. Rep. Norm Dicks introduced House Bill 7073 that would designate the land as part of the Hoh reservation and transfer 37 acres of Olympic National Park property to the Tribe.

The Hoh reservation was created in 1893, and has remained in the same location to the present day. The Tribe, located on about 640 acres of flood plain at the mouth of the Hoh River south of the town of Forks, has purchased an additional 425 acres of land over the past year to relocate its village. If the expansion and relocation program is authorized, national park land would connect the current reservation with the newly acquired land. The tribe will assume responsibility for maintaining the natural wildlife corridor on the park property and could not use it for development.

The relocation program was prompted by consistent flood problems that have plagued the Tribe’s lands since the reservation was created over 100 years ago. Over 90% of the reservation’s 133 residents currently live in a flood zone, and the Tribe’s proximity to the Pacific Ocean leaves residents susceptible to potential tidal surges and tsunamis. Upon Congressional approval of the park land transfer, the tribe could relocate housing in about three years.

Track the Status of House Bill 7073.

Find more information regarding the Hoh Tribe.

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California’s water crisis may be eased by the U.S. Bureau of Reclamation’s plan to raise the Shasta Dam, but the Winnemen Wintu, fisheries advocates and environmentalists are opposed to the project. By raising the dam between 6 ½ and 18 ½ feet, the reservoir could provide enough water to serve Los Angeles for more than a year. The Tribe, which lost most of their ancestral land in 1945 when the dam was built, fears that this will flood the remaining one-tenth of land they have left. The land that would be lost includes two sacred rocks used in Tribal coming-of-age ceremonies.

The price of raising the dam is far less than building a new dam elsewhere. Supporters of the plan claim the project will aid with growing water needs, additional hydropower production, flood protection, and that the larger reservoir would store more cold water needed for salmon migration. However, the interests of local farmers and other supporters in raising the dam is proving contrary to the Tribe as well as conservation and environmental groups. Swelling the lower McCloud River would ruin one of California’s prized trout streams, and there is a question as to whether the cold water would actually be released for migrating salmon or is just an attempt to reinvest in the projects which caused the salmon migration problem. The environmentalists favor building salmon bypasses and paying users to increase conservation. The Bureau expects to finish its reviews of the project at Shasta Lake as well as four other possible options and distribute them for public comment early next year. Congress would then have to authorize and fund the project.

Additional information on the issues regarding the Shasta Dam may be found here via the San Francisco Gate and Indian Country Today. 

 

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