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

W. Ron Allen

John Dossett

In response to recent coverage regarding the planned $8.5 Million purchase of an office complex to serve as a Tribal Embassy in Washington D.C., representatives of the National Congress of American Indians contacted Native American Legal Update to offer the organization’s perspectives.

NCAI General Counsel John Dossett:

“This is a smart economic move for NCAI and for Indian country. NCAI has been renting space in DC since 1951. It is very expensive, year after year. Ownership makes sense for a long term organization. Right now the real estate market is down in DC so it is a good time to buy. Our monthly mortgage payments will be less than current rent, and we will have twice as much space some of which we can sublease. We will work to retire the debt, then NCAI's costs will be much less and we can provide more services to tribes. More advocacy is an investment in Indian Country's future. (NCAI just helped to secure 2.5 billion in funding for Indian country infrastructure through the stimulus bill.) NCAI is also planning to co-locate with our sister Indian organizations, so the plan is to help out all kinds of tribal advocacy in Washington. This is part of NCAI's plan to become more economically self-sufficient so that we can provide the advocacy services to Indian country no matter what the economic climate is. NCAI President Tex Hall started this capital campaign in 2004, and it is a good plan for the economics of NCAI and tribal advocacy in Washington, DC.”

W. Ron Allen, NCAI Delegate and Tribal Chairman/Executive Director of the Jamestown S’Klallam Tribe:

“I absolutely agree with John Dossett regarding that this project is a great move by NCAI. What makes people think that because we are in a recession it is a bad time to buy. It's actually a great time to buy if your financial situation is strong, particularly because it is during these down turns in the realty business that you can negotiate a great price. That opportunity is what NCAI was able to capitalize. NCAI has continued to grow in its capacity to serve Indian Country and it Tribal membership and has an urgent need to expand it office space needs to accommodate that growth. NCAI has been generating a great deal of financial commitments from its membership because of its vision of finally owning it own Embassy in Washington, DC where the politics significantly affect the rights and interests of the 562 Tribes across America. I have personally been extensively involved in this initiative for over 20 years including when I was the President of NCAI (1995-99). Our time has finally come and I am confident that not only will we secure this facility, but retire the debt on a rapid schedule.

Indian Country has a right and even a duty to have a physical presence in America's Capital to remind the US political leadership of their obligations and commitments to the American Indian and Alaska Native peoples of this nation. AND on a practical note, I want to underscore the fiscal stewardship of the funds NCAI receives from its membership, we must use the funds to own our office assets instead of benefiting some landlord in DC.”
 

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Recently a local Madison newspaper ran an interesting story on a grass roots movement in Wisconsin to ban public schools from using Native American mascots, logos, or nicknames.

The article reported that, while the number of schools across the nation that have dropped or altered mascots and logos have increased over the years, not one state has passed a law banning usage of Native American mascots, logos, or nicknames to date.

Currently, lawmakers in Wisconsin are trying to pass a bill that would change this reality. The bill would create a process for people to complain about race-based logos, nicknames or mascots. Once a complaint was filed, the state Department of Public Instruction would hold a hearing and make a decision. If the Superintendent of Public Instruction ruled the complaint was valid, the school would have tweleve months to phase out the mascot or logo. And defiance would come at a high cost – a school could be fined between $100 and $1,000 a day for refusing to phase out the offensive mascot, logo, or nickname.

Because cultural competency is increasing, and knowledge of Native American history is expanding, some mascots and logos that once were viewed as entertaining are now considered racist and disrespectful. If even a small group of people find a mascot or logo to be offensive, it should be remove or phased out immediately. Cultural respect is far more important that maintaining imagery for the sake of entertainment; moreover, it is incredibly important to be culturally sensitive if we are to progress as a society that embraces diversity.

A legislative hearing on the bill is scheduled for March 17. The bill would have to pass both houses of the Legislature and be signed by the governor to become law. Native American educators and legislators have also started mobilizing and collaborating with the Wisconsin group in charge of the grassroots effort to support the movement, which they believe is important in making a positive change in the way Native Americans are portrayed in schools and in the community. It will be interesting to see if this bill is passed, and if it is, if it has a nationwide effect.
 

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Today the U.S. Supreme Court held that under the Indian Reorganization Act, the Interior cannot take land into trust for tribes seeking to avoid town's land use controls if the tribe was not federally recognized as of 1934 (per Carcieri v. Salazar) and that a state is free to forbid its local governments to provide payroll deductions for transmittal to unions for political activities (see  Ysursa v. Pocatello Education Association).

Also, yesterday the Eleventh Circuit found that police cordon around protest rally allegedly so far from the rally point that the public and press could not hear what was going on likely violated the First Amendment . (See Amnesty International, USA v. Battle).
 

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Proposed NCAI "Embassy of Tribal Nations"

In the midst of the worst global economic crisis since the Great Depression, and with poverty still endemic in Tribal communities, officials with the National Congress of American Indians have announced they are close to spending $8.5 million to acquire a building to serve as an “Embassy of Tribal Nations” in Washington D.C..  Located at 1514 P Street N.W. in the Dupont Circle area near Embassy Row, the facility has a 17,000 square foot office complex situated on an 8,500 square foot lot. The compound contains three office buildings, three carriage houses, and boasts an executive suite. The interior of the building features high ceilings, hardwood floors, remodeled baths, two new kitchens, and parking space for 22 vehicles.

Tex Hall, former president of NCAI, stated that

“In the end, this will be a visual example of what NCAI represents: sovereign nations. If we got something much cheaper, how would that make us look?”  He also observed: “There is big unemployment and poverty among our people – just getting by is the predominant issue. I think there has to be a targeted effort to help educate Indian country why this is worth it.”

Commenting on the current state of Native American communities, the NCAI notes

“the reality is that Indian reservations have a poverty rate of 26% -- the highest poverty rate of any ethnic grouping in America. Indian unemployment is disproportionately high. Indian health, education and income statistics are the worst in the country.”

The NCAI’s website indicates that the organization is devoted to, among other goals, “Indian health care”, “affordable housing”, “Indian education”, and “protection of programs and services to benefit Indian families”. NCAI’s public information sources do not indicate how much money is budgeted toward these programs, or what percentage of its program funding the $8.5 million being spent on an Embassy might represent.

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Fractionation of Pine Ridge Reservation (Villageearth.org)

The exterior boundaries of Tribal reservations are usually fairly well defined, and provide a delineation for when one is leaving state land and entering “Indian Country”. However, the ownership and control of land within the bounds of the reservation is often far less clear. Through previous federal policies such as allotment and termination, much Native land was alienated from Tribal ownership. As a result, ownership maps of present-day reservations often resemble a “checkerboard”, with plots of non-Native-owned land interspersed with Tribal trust lands.

For many Tribes, reacquiring the land within reservation boundaries is both an economic and cultural imperative, and Tribal leaders seek creative legal and business methods of eliminating the checkerboard. The Tulalip Tribes in Washington are presently considering a unique economic tool in this regard: imposing a tax on sales of land by Tribal members to non-Natives. The Tulalip Grassroots Committee, an organization of Tribal members, has proposed a 17 percent tax on the land value on real estate transactions to discourage Tribal members from selling land to non-Native buyers. "We believe the reservation is sacred and we wanted to make sure that not as much land goes out of trust status," states Tulalip Chairman Mel Sheldon.

With real estate prices plummeting nationwide in the tumult of the current economic crisis, Tribes with cash are positioned to more quickly eliminate checkerboard spaces within reservations. While a tax such as that proposed by Tulalip may help reduce alienation of Tribal lands, there is also risk of alienating the surrounding business community by raising a new barrier to transactions on reservations. Balancing the interests of internal cohesiveness and positive external relations will become increasingly important as Tribes navigate through the current nationwide economic crisis.
 

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"It is simply unfair..."  Rep. David Dank

Assailing what he calls “special privileges that give (Native Americans) unique advantages” and declaring “It’s time for our Legislature to restore sanity to Oklahoma’s dealings with the Tribes”, Oklahoma state Representative David Dank has introduced three bills before the state Congress: 1) a constitutional amendment to give private businesses the same right to make corporate campaign contributions as Tribes; 2) a second amendment requiring compacts between Tribes and state government be ratified by the state Legislature; and 3) a bill giving private businesses located close to competing Tribal stores the same sales tax exemptions as the Native-owned businesses. Dank outlines his plan and purpose in an article in this week’s Oklahoman newspaper.

Dank’s reasoning is based on his view that:

Tribes collect no sales taxes on items sold from their grocery and convenience stores, or other Tribal businesses. They collect about half of normal tobacco taxes from Indian smoke shop sales. Tribal businesses pay no property taxes, the state receives little or nothing from Tribal auto tags, and Tribes, unlike private businesses, are free to make millions in corporate campaign contributions.

Meanwhile, the Tribes reap millions from a state-issued monopoly on casino gambling in Oklahoma because of a 15-year compact that cannot be altered.

These are tax exemptions and breaks that siphon tens of millions of dollars each year from local school districts, city and county governments and our state treasury. Non-Tribal citizens and businesses are being taxed to make up those losses. In some cases, non-Tribal businesses are being driven into bankruptcy by the unfair competition made possible by these special privileges.

Dank’s article neglects to mention some other ways in which Native American Tribes are “special”. Unlike every other municipality in the country, and despite being recognized by the US government as sovereign, Tribal governments are not allowed to levy property taxes on the Tribe’s own land. This state of affairs deprives Tribes of untold millions in revenues each year that other municipalities use for roads, police, and other civic services. For Tribes fortunate enough to be located near population centers or interstate highways, gaming revenue is but a partial substitute for the lack of taxing authority, as illustrated by the endemic poverty and substandard infrastructure on reservations.

The private sector of Oklahoma’s economy also reflects a “special” place for Native Americans. As he laments the Tribes’ “special financial privileges” that “cost state and local governments millions and damages competing private businesses”, Dank omits the fact that Native American and Alaska Native householders in Oklahoma had a median income 18.1 percent less than the median level for all households, and an overall decline in median income of 24.2 percent since the year 2000 – the biggest drop of any demographic group in the state. Meanwhile, the Caucasian demographic in Oklahoma has realized a 42.8 percent increase in household income level since the year 2005.

Special indeed.

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 (Billy Mills; Sitting Bear) 

Articles on this site have previously commented on the troubling fact that race continues to be an actively-considered element in both substantive and jurisdictional issues of law affecting Native Americans. The recent 9th Circuit case of United States v. Cruz demonstrates that the phenomenon of “race laws” continues to haunt the national landscape.

The Cruz case involves the analysis of whether a criminal defendant could be tried by a federal court under the laws of the United States. The federal government contended that Mr. Cruz is an “Indian” and committed an assault on Tribal land, thereby subjecting him to federal jurisdiction under 18 U.S.C. § 113(a)(6). Mr. Cruz appealed, alleging that he is not an “Indian” and therefore not subject to federal jurisdiction under the statute. The 9th Circuit Court of Appeal offered the following preface to its analysis:

“At first glance, there appears to be something odd about a court of law in a diverse nation such as ours deciding whether a specific individual is or is not “an Indian.” Yet, given the long and complex relationship between the government of the United States and the sovereign tribal nations within its borders, the criminal jurisdiction of the federal government often turns on precisely this question — whether a particular individual “counts” as an Indian — and it is this question that we address once again today.”

The Court then plunged into an analysis of Mr. Cruz’s racial heritage, determining that

“His father is Hispanic and his mother is 29/64 Blackfeet Indian and 32/64 Blood Indian. The Blackfeet are a federally recognized tribe based in northern Montana; the Blood Indians are a Canadian tribe. Given his parents’ heritage, Cruz is 29/128 Blackfeet Indian and 32/128 Blood Indian.”

The Court ultimately found that the evidence in the case “does not demonstrate that Cruz is an Indian”, and remanded the matter back to the lower court with directions to acquit Mr. Cruz of the federal charges.

The Cruz case is merely the latest in a long series of cases where judges have attempted to determine who is and is not Native American through subjective racial analysis. Leaving aside the glaring issue of why race is a jurisdictional factor in the first place, courts have also failed to create any uniform standard for this tortured arithmetic. In Sully v. United States, 195 F. 113 (8th Cir.1912). 1/8 “Indian” blood was held sufficient to be Indian; in Vezina v. United States, 245 F. 411 (8th Cir.1917), women 1/4 to 3/8 Chippewa were held to be Indian; in Makah Indian Tribe v. Clallam County, 73 Wash.2d 677, 440 P.2d 442 (1968), 1/4 Makah blood sufficient to satisfy the “Indian blood requirement”, in Goforth v. State, 644 P.2d 114, 116 (Okla.Crim.App.1982), the requirement of Indian blood was satisfied by testimony that a person was slightly less than one-quarter Cherokee; and in St. Cloud v. United States, 702 F.Supp. 1456, 1460 (D.S.D.1988), 15/32 of Yankton Sioux blood was held sufficient to establish one as an “Indian”.

Conducting mathematical calculations on a human being’s racial ancestry for the purpose of deciding which laws apply to that person harkens back to the darkest days of American jurisprudence. For those who thought America had moved beyond Plessy v. Ferguson, when the Supreme Court decided that a person who was “7/8ths White” could be consigned to both a separate train car and a separate legal standard, it is clear that much work still remains to be done. It has become typical for courts to “punt” the obvious problems with race laws involving Native Americans by saying “it’s Congress’ responsibility, not the courts.” This justification for abdicating judicial responsibility is not only legally fallacious, it directly contradicts the clear legal precedent of cases such as Brown v. Board of Education where legal policies based on race were declared inherently unconstitutional. Courts clearly have the legal authority to put an end to race-based laws, all they need is the courage.

A far better way for Tribal/federal jurisdiction questions to be analyzed is based on treaty status, with Tribal members being subject to either Tribal or federal jurisdiction based on agreements between their Tribe and the US government.  These are the same principles used when citizens of Canada, Mexico, or other sovereigns  are charged with crimes within the United States, and the procedures for determining jurisdiction are well established. Such a policy would properly acknowledge the sovereign status of Tribes, and eliminate the embarrassing and intellectually-unsupportable notion that a person’s race should determine their legal status in America.
 

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Earlier this month, the Senate Committee on Indian Affairs discussed a report that indicates Native Americans suffer disproportionately from poor health due to underfunding of the Indian Health Service.

According to the National Steering Committee for Reauthorization of the Indian Health Care Improvement Act (IHCIA),  Native Americans have a level of health care funding that would be considered unacceptable for other American citizens.

The Northwest Portland Area Indian Health Board then cited alarming statistics that show that Native Americans are 638 percent more likely to die from alcoholism, 400 percent more likely to die from tuberculosis, 291 percent more likely to die from diabetes complications, 91 percent more likely to die from suicide and 67 percent more likely to die from pneumonia and influenza.

In order to improve the quality of the healthcare that Native Americans receive, supporters are encouraging Congress to reauthorize IHCIA. The law has not been reauthorized since 1992 and ideally, any reauthorization legislation would put important decision-making powers in the hands of tribal leaders. Not just because these leaders understand the needs of their own people the best (which they do) but also because tribal nations are capable of managing their own health care systems.

According to the Aberdeen Area Tribal Chairman’s Health Board and the Standing Rock Sioux Tribe, IHCIA is a good framework for a Native American health care overhaul, but safeguards need to be in place to assure that tribal sovereignty is protected. Congressmen say they understand the sovereignty issue but still believe the government should establish general eligibility rules so there is a fair distribution of funds for tribes in all parts of the country.

The sooner a compromise is achieved and the sooner IHCIA is reauthorized, the better healthcare will be for those that need, and deserve it, the most. 

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Gonzaga Law School (November.org)

Under the leadership of Professor Jay Kanassatega, a new Federal Indian Law Program has been created at Gonzaga University's law school. The program is designed to foster the development of both future attorneys and Native governmental leaders. For law students, the program will provide intensive instruction and practical experience in legal matters affecting Native communities. For Tribal governments, the program focuses on analysis and development of effective policies and their interaction with the national political system. The new Federal Indian Law Clinic, created in partnership with the Kalispel Tribe, offers Gonzaga students the opportunity to handle active legal matters in Tribal and state courts. The program’s next goal is the creation of the Institute for Development of Economic Policy for Indigenous People, which will focus on furthering economic self-reliance for Native people. The program will also be partnering with private law firms and other entities to take on federal cases of national import to Tribes and their members.

Professor Kanassatega comes to Gonzaga from private practice with the firm of Leonard, Street and Deinard in Minneapolis, where he focused on complex commercial litigation on behalf of Tribes and commercial entities. He previously served as the first Solicitor General of the Non-Removable Mille Lacs Band of Ojibwe, and was instrumental in helping the Band design, draft legislation, and implement the first separation-of-powers Indian government in Minnesota, including the Band's first court system. Prior to serving as Solicitor General, he served the Band as its Commissioner of Judicial Affairs, administered its Office of Management and Budget and served as its Economic Development Planner.

Associate Professor George Critchlow summed up the impetus behind the University’s new program. “Here at the law school we’ve been aware that we’re surrounded by tribes. It seemed to us this was a logical place to have an Indian law program and to put more emphasis on training students, both Native as well as non-Native, about the legal needs of the tribes and individual Natives to equip them with not only theoretical knowledge, but some of the skills and cultural information that would be useful in terms of being effective lawyers in representing Indian interests.”
 

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(Crow Nation gas well - Reuters)

After years of legal wrangling, the Anadarko Agency office of the Bureau of Indian Affairs recently held the largest-ever auction of oil and gas mining leases on Tribal land. The auction offered mining lease rights on over 1500 plots located on Kiowa, Comanche, Apache, Fort Sill Apache, Caddo, Delaware, and Wichita Tribal and allotted lands. The sale netted just over $6 million in purchases, with the majority of the lease rights going to the Sodak, Marathon and Chesapeake oil companies.

Revenues like this are certainly much-needed in Native communities, but the money does not go directly into Native hands. The funds will be managed by the BIA in trust for the Tribes whose lands underlie the mining leases. As the claims in the Cobell litigation highlight, the fiduciary relationship between the BIA and Tribal members has been marred by allegations of mismanagement and breach of trust.  It will be incumbent upon Tribal governments and their members to monitor the revenue flow from these leases to ensure the funds are properly used for Tribal needs. A further question arises regarding future revenue streams from the mineral resources the leases are designed to produce. Whether Tribes will receive royalty payments from wells that begin pumping oil and natural gas on their lands – and how much money can be expected – is undetermined at this time.

Indian trust beneficiaries who have questions about this sale may contact their fiduciary trust officer using the interactive map on the OST Web site , or call OST’s Trust Beneficiary Call Center at 1-888-678-6836
 

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The popular internet site Facebook is celebrating its fifth birthday - but not everyone is invited to the party.

Most users of the social networking site spend their time interacting with their friends and posting news about their daily lives. Seldom noticed are the legal disclaimers and requirements set forth at the bottom of the web pages. Facebook’s terms of use require members to agree that they will not “provide any false personal information” on the site or write anything that might “intimidate” other users.

Robin Kills The Enemy, a computer technician who lives on the Rosebud Reservation in South Dakota, used the site for her own social networking – until the day she logged on and realized she no longer had any “friends”. The site administrators at Facebook had suspended her account and accused her of using a false name, in violation of the site’s terms of use. Despite being in the middle of planning a trip with her friends through the site, Ms. Kills The Enemy was compelled to send in copies of government identification papers in order to reconnect.  Melissa Holds The Enemy had the same experience and was banned from the site for a month, while Jeremy Brave-Heart was not even allowed to register until he sent in identification papers.

When questioned about its policy, Facebook Privacy and Public Policy spokesman Simon Axten told the Argus Leader newspaper that “Facebook is based on a real name culture. This helps create an environment where people are accountable for their actions and behavior. Fake names and false identities are actually a violation of the Terms of Use, and we disable fake accounts when they're reported to us by our users."

While promoting the accuracy of information on a website is certainly legitimate, a legal policy and cultural interpretation thereof that bans numerous Native Americans from one of the world’s most popular internet sites is troubling and legally unsustainable. In an era when computers can recognize human voices and analyze DNA, it is certainly not beyond the capacity of technology to recognize Native names that have been in use for centuries. It is nevertheless promising to note that legendary college and professional quarterback Sonny Sixkiller’s Facebook page currently remains active, and that a webpage dedicated to ending discrimination against Native names has been started…on Facebook.
 

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(Solar Panels for Tribal Housing, Romona Band of Cahuilla Indians, Anza, California)

When it comes to developing energy resources, many Tribes appear to be in the right place at the right time in 2009. Native communities blessed with wind, water, solar, or geologic resources are likely to see broad demand for their development, as the United States pushes for increased domestic energy production in general and of alternative/renewable sources in particular. The Department of Energy is actively seeking Tribal participation in energy development, the federal economic stimulus packages currently being debated in Congress contain funding and tax credits for energy projects on reservations, and private entities are realizing and pursuing the untapped energy sources present in many Native lands.

While the potential benefit to Tribes and the rest of the country from this energy drive appears vast, realizing that potential requires navigating various federal laws and regulations. Recent federal legislation such as the Indian Tribal Energy Development and Self-Determination Act, 25 U.S.C. §§ 3501–3506 (ITEDSA) sets forth rights and procedures for Tribes to pursue development of energy resources on their lands. Through ITEDSA, Tribes can negotiate energy resource agreements (“TERAs”) with the Department of the Interior, which provide authorization for Tribes to pursue energy development and transmission activities of all kinds. The newness of ITEDSA – the final regulations for which came into effect in 2008 – presents both a challenge and an opportunity for Tribes. Tribes that have a firm grasp of both the nature of their natural resources and the rules for negotiating TERAs can put themselves in the forefront of new energy production, thereby producing a vital resource for their members and new revenue from power sales to outside entities.

Understanding the federal laws and procedures for energy development is critical for Tribes not just to speed up the development process, but also to protect their legal and resource rights. Professor Judith Royster’s recent article regarding Tribal sovereignty and implementation of ITEDSA highlights previous instances when Tribes lost hundreds of millions of dollars in potential energy revenues, primarily due to having less information than their non-Tribal lessees regarding the true nature and extent of the Tribe’s natural resources. While the provisions of ITEDSA are designed to help prevent these egregious scenarios and create a “level playing field” for all parties, it is crucial for Tribes to be knowledgeable of their rights and opportunities -- and to be proactive in exercising them.
 

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(Tribal Courthouse - Saginaw Chippewa Indian Tribe of Michigan)

In 1968, Congress passed legislation codified as 25 U.S.C. §§ 1301-03, better known as the Indian Civil Rights Act (ICRA). Modeled after various portions of the amendments to the US Constitution that comprise the Bill of Rights, ICRA mandates protections for Tribal members such as freedom of speech, religion, press, and assembly. Subparagraph 7 of Section 1302 of ICRA provides that Tribal Courts shall not require excessive bail, impose excessive fines, impose cruel or unusual punishment, “and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000, or both.”

Murder, rape, armed robbery – a Tribal Court can only impose a maximum one-year jail sentence for these or any other crimes committed on a reservation. If the Tribe views such punishment as inadequate for what in most jurisdictions would be capital crimes, its only option is to surrender jurisdiction to a state or federal court and allow the matter to be adjudicated in those systems.

Why?

In the 21st Century, what legal, intellectual, or philosophical justification exists for restricting the power of Tribal Courts to administer reasonable justice in their sovereign territory? Outside the realm of Tribal lands, courts in even the poorest and least-educated counties in America have the full sentencing panoply (including life sentences and capital punishment) available to deal with criminal acts occurring within their jurisdictions. Yet Tribes with hundreds of millions of dollars in revenue and sophisticated judicial systems are only permitted to issue sentences equivalent to that which non-Native courts impose on habitual traffic offenders.

The ability to make and enforce laws to protect the security and possessions of the members of a nation is a basic and fundamental element of sovereignty. When a capital crime is committed on Tribal lands, the Tribe suffers twice – first from the act itself, and then from the humiliation of having to hand over jurisdiction to a foreign court as the only means to pursue reasonable justice. At what point do federal/Tribal relations move beyond the Oliphant standard, wherein Tribes are given authority only to the point “consistent with the safety of the white population with which they may have come in contact”? In the era when the United States has finally proven itself “ready” to elect a person of color to the highest office in the land, is it also now ready to provide Tribal Courts the same basic legal authority as any other tribunal in the land?
 

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