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

The Association of American Law Schools has selected Professor Ron Whitener as the 2009 recipient of the M. Shanara Gilbert “Emerging Clinician” award for excellence in clinical legal education. Professor Whitener is Assistant Professor of Law and the Director of the Tribal Court Criminal Defense Clinic at University of Washington School of Law, is Of Counsel to the law firm of Foster Pepper PLLC in Seattle, and serves as Chief Judge for the Confederated Tribes of the Chehalis.

The AALS award announcement states:

Through the Tribal Court Criminal Defense Clinic, Ron Whitener has made access to justice a reality for countless clients and has helped to train a new generation of advocates for American Indians. For many American Indians, the Tribal Court Criminal Defense Clinic is the only source of representation for those facing criminal charges because tribal courts are not required by law to provide legal representation. Professor Whitener saw this pressing need, started this clinic, and has helped to expand its reach through fundraising. In addition, Professor Whitener has helped to build the clinical program at University of Washington and has been a resource to other clinical programs. Professor Whitener also is an engaged scholar, authoring or co-authoring three journal articles focused on legal and health issues affecting American Indians.

 

Professor Whitener is actively involved in American Indian legal issues. He began his career as Legal Counsel to the Squaxin Island Tribe, of which he is a member, and he has done lay advocate and other legal training for nearly a dozen other tribes in addition to direct representation of clients. He frequently speaks about treaty rights, tribal jurisdiction, and other legal issues affecting American Indians. He has also promoted international clinical legal education efforts through his collaboration with the Afghan Legal Educators Program, a program of the Asian Law Center at the University of Washington. Afghan law faculty participating in that program visited tribal courts and attended meetings with faculty and students in the Tribal Court Public Defense Clinic.

 

The M. Shanara Gilbert Award will be presented at the Conference on Clinical Legal Education at a special ceremony on Friday, May 8, at 9:00 a.m., in Cleveland, Ohio. We look forward to seeing you in Cleveland and honoring Professor Whitener for his creativity in addressing a pressing legal need for an underserved community and his outstanding contributions to clinical legal education.

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In order to comply with the Western Hemisphere Travel Initiative and the Real ID Act, travelers seeking entry into Canada from the United States must present either a current passport or a security-enhanced ID card by June 1, 2009. The federal government has provided millions of dollars to state governments to develop the chip-embedded ID cards and supporting database systems – but no money has been provided to Tribes to equip their members with the necessary cards and support.

Many Tribal members prefer to utilize ID cards issued by their Tribal governments when traveling internationally, to reflect the sovereignty of their Tribes. Despite the 1794 Jay Treaty that guarantees indigenous peoples the right to move freely between Canada and the U.S., if Tribal governments can't issue security-enhanced ID cards by June 1, Tribal members attempting to enter Canada with standard IDs will likely be turned back at the border. Tulalip Tribal leaders have agreed to develop ID cards for several Northwest Tribes, along with a database that would link to computers at the border, but it appears unlikely the systems will be on-line in time. "We're racing the clock right now," said Theresa Sheldon, a Tulalip policy analyst who has worked on the border security issue for several years. "The only way we would be able to make it by the deadline is if they gave us an extension."

The National Congress of American Indians has filed a request with the federal government for a $20 million grant to help Tribes create their own enhanced IDs. However, even if that request is approved, the money will likely not become available to Tribes until 2010.
 

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Do politicians know enough about the constituencies they represent when examining laws and making important decisions? According to attendees at the new Legislature's Native American Caucus, the answer is no. One Navajo lawmaker pointed out that in Arizona, for example, lack of knowledge about Native American history hinders politicians from making informed decisions as they deal with important issues that effect the state's tribes.

The Caucus is a bipartisan forum for legislators to discuss issues facing Arizona's twenty one recognized tribes. The discussion centered around the importance of increasing the amount of contact politicians have with Indian nations and providing more cultural competency training. New Mexico recently passed a law that requires state employees who have contact with Indian nations to undergo training in Native American culture. The law even requires the governor to meet with tribes at least once a year. Arizona is looking at adopting a similar law.

It will be interesting to see whether or not Arizona follows New Mexico’s lead. Having this kind of valuable contact and deeper understanding of tribal needs undoubtedly makes it much easier for New Mexico’s politicians to maintain healthy relationships with tribes, because they are on the ground level and understand critical issues by seeing them with their own eyes and learning from tribal leadership.

All politicians should be educated about the foundations and structures of Native governments. Perhaps if Arizona follow suit so will other states as well. It is too early to tell but will be an interesting initiative to follow in the years to come.

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Fed up with crimes on Tribal lands that go unpunished in state or federal courts, the Blackfeet Nation has resolved to challenge the legal authority that limits Tribal Court jurisdiction and punishments.  Blackfeet Tribal Resolution No. 98-2009 calls on Montana’s Congressional Delegation to sponsor a bill to allow Tribes to remedy Oliphant v. Suquamish, 435 U.S. 191 (1978).

As previous articles on this site have discussed, the Oliphant decision and the Indian Civil Rights Act together limit Tribal Court jurisdiction over "non-Indians" and allow Tribal judges to impose only a maximum one-year prison sentence for any crime, no matter how violent or damaging to the Tribe. Currently, the sole authority to prosecute major felony crime lies with the federal government, yet from 1997 to 2006 federal prosecutors rejected nearly two-thirds of the reservation cases referred by FBI and BIA investigators.

This year Senator Byron Dorgan, D-N.D., chairman of the Senate Committee on Indian Affairs, introduced a draft for the Tribal Law and Order Act of 2009. If enacted, the law would make incremental steps to an Oliphant remedy in the following areas: 1) Allowing Tribal Courts to impose up to 3 years in prison or a fine of up to $15,000 for major crimes; 2) Increasing funding for Tribal Courts and law enforcement departments; and 3) Creating a new Law and Order Commission to study issues of jurisdiction, investigation, and prosecution of reservation crimes and the impact on residents of Tribal land. The Commission would have two years from the enactment of the legislation to issue a report to Congress. 

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Salmon-friendly culvert - Thurston County, Washington

Nineteen Tribes have teamed up to bring federal litigation against the State of Washington to speed up the pace of dealing with more than 1,800 fish barriers associated with state highways, which block more than 3,000 miles of potential stream habitat for salmon. Washington’s legislature has funded culvert replacement since 1991, but the current pace of construction could take up to 100 years to fix the problems.

The Tribal consortium previously prevailed in litigating a preliminary issue regarding the state’s duty to protect and enhance salmon runs. In 2007, U.S. District Judge Ricardo Martinez ruled that treaties signed in the 1850s impose a duty on the state to “refrain from building or operating culverts under state-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for tribal harvest.” Tribes and the state have worked to craft a acceptable settlement since then, but lack of progress and funding prompted a new round of claims.

Dan O’Neal, chairman of the Washington State Transportation Commission, expressed little hope for a legislative solution in the near term.

“The Legislature right now is dealing with all kinds of issues. From a transportation standpoint, revenues are down. Gas taxes aren’t producing as much revenues because people are driving less or using more efficient cars or whatever. I don’t think this thing, frankly, has percolated to the top of legislators’ lists, I don’t think they will change anything unless the court directs it.”

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Reservation Energy Projects - Oneida Tribe of Indians

A recent Private Letter Ruling by the IRS has held that for certain purposes related to government finance, Native American Tribes are to be treated like states. This allows Tribes to issue financially-attractive tax exempt bonds to finance projects related to “essential government functions”. Normally, commercial or industrial activity by Tribes is not considered an “essential” function of Tribal government, thereby precluding the issuance of tax exempt bonds for such activities. However, the IRS ruling states that an exemption to this rule exists for utilities “if the activity provides substantially all of its service on (a) tribe’s reservation. A utility-type activity includes the furnishing or sale of electrical energy, gas, water, or sewage disposal services.”

Stating that “we find the ownership, operation, and financing with proceeds of tax-exempt bonds of the facilities of municipal power utilities to be both sufficiently prevalent and sufficiently longstanding among state and local governments to be considered customarily performed by state and local governments.” Since Tribes and states are treated the same by the IRS in this context, the IRS held that Tribal utility projects may be financed with tax-exempt bonds when they are “not a commercial activity, (are) indistinguishable from public works projects...focus on benefits to local citizens, and are not in competition with other businesses.” The ruling also allows for some energy generated by Tribal projects to be sold to off-reservation users, so long as “the electrical power generated by (the Tribe) will be used to service the local population with only minimal amounts of power sold to customers in the immediate vicinity of the Reservation that are not adequately served by other power providers.”

At a time when interest in and opportunities for generating renewable energy on Tribal Lands are beginning to soar, the ability of Tribes to finance such projects with desirable tax-exempt investment vehicles will help raise necessary capital even in the current economic climate.
 

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Nespelem Tribal Health Center, Confederated Tribes of the Colville Reservation

Health care reform is touted as a top priority by the Obama administration, and one need only look to Tribal reservations to see the urgency. Treaty obligations and acts of Congress require the United States to provide health care for Native Americans, but in 2004 a Civil Rights Commission report found the government spent more per capita on health care for federal prisoners than for Native Americans.

In addition to the lack of direct funding, Tribal members suffer from a lack of access to rural doctors and clinics. As reported by The Seattle Times, two years ago Michael Buckingham of the Makah Tribe lost two fingers in a fishing accident in the waters off his reservation, in the isolated coastal town of Neah Bay, Washington. Buckingham needed physical therapy for a third finger that was severely injured, but couldn't afford the gas to make 70-mile trips to the closest therapy clinic in Port Angeles. "If I can't get it fixed, I'm just ready to have it cut off, because it's too painful," Buckingham said.

The lack of federal funding for health care has resulted in many Native Americans being forced to live with chronic pain, forgo prenatal care, and suffer from untreated depression. The Indian Health Service presently operates only 31 hospitals nationwide, less than one per state.  President Obama has proposed a $4 billion budget for the IHS, a $700 million increase. Yet with federal spending at an all time high and Congress focused on the country’s financial condition, it is uncertain how quickly new funds to improve Native health care will emerge.
 

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On March 4, 2009 the Senate Indian Affairs Committee met in Washington to discuss what experts and community leaders describe as “crisis levels of suicides in Indian country.”

The Committee looked at initiatives implemented in the past and discussed critical needs for developing resources to address suicides in total across Indian country. What years ago started as a point of concern has now evolved into an epidemic.

According to experts that testified to the Committee, American Indians and Alaska Natives have the highest suicide rates nationwide. Native youth ages 15-24 have suicide rates more than three times higher than the national average and across the Great Plains, this rate is even higher. Sadly, this is a 70 percent higher rate of suicide than in the general population. One councilman of the South Dakota Rosebud Sioux Tribe testified that over the past several years in his tribe alone, the suicides and suicide attempts got so high that in 2007 his Tribal President declared a State of Emergency in order to draw attention and resources to the problem.

The general consensus between those who testified is that that there is a lack of mental health services and funding for reservation communities and that a systemic vision must be established so that leadership on reservations feels supported and assured that there is a concerted effort underway. This would include change in policy and, at the minimum, an investment on programming and services for reservations. Sadly, because health care rationing takes place on Indian reservations in America, 40 percent of Indian health care needs are not met. So what about the 1868 Treaty of Fort Laramie that requires the U.S. Government to provide health care to the Tribes. Why does it appear as though this is not happening? Perhaps it is time to revisit the treaty since it obligates the federal government to do more. In addition to lack of resources and program funding, other leaders testified that poverty also plays a big role and that there is a general lack of hope in some Indian communities.

Although decreasing Native suicide rates, which have reached epidemic proportions, will not be easy, the Committee may want to start by empowering Indian community leadership and funding important preventative programs with federal or state government financial support. That way elders, parents, teachers, and community leaders would have the resources to set up counseling and culturally healing programs and activities. The importance of the collaborative efforts Indian communities and the agencies that support must be strengthened.

Because the Committee opened the floor to discussion, they broke the silence. But listening to experts and leaders from the Indian community is only the first step; they must now make sure that they are doing everything they can to create holistic counseling programs, good jobs, improve education, increase health care and make housing possible throughout Indian Country. Perhaps this will restore hope to Indian communities and provide those who are struggling with the resources they need to get through their darkest days.

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In an effort to combat the ravages of alcoholism, the Tulalip Grassroots Committee, an organization of members of the Tulalip Tribes, will soon present an initiative to the Tribe’s General Council calling for a ban on the sale of beer, wine, and other alcohol anywhere outside the Quil Ceda Village shopping area on the Tulalip Indian Reservation. The new legal policy would also prohibit restaurants and businesses within the reservation from advertising alcohol on signs. If the initiative is approved, the state-run liquor store near the Tulalip Casino would be forced to remove alcohol advertising signs from its window, and two stores near the reservation's western edge would no longer be allowed to sell beer and other alcohol.

According to the Centers for Disease Control and Prevention, nearly 12 percent of all Native American deaths are linked to alcohol, roughly twice the rate of alcohol-related deaths for the rest of the U.S. population. "Indians have a lifelong battle with alcohol," said Les Parks, who leads the Tulalip Grassroots Committee.

Tribes across the country have previously attempted to utilize legal measures to reduce alcohol consumption by Tribal members, with mixed results. In 2000 the Yakama Nation banned alcohol sales on Tribal lands and unilaterally imposed a tax on alcohol sales on private land within the reservation, drawing fury from non-Native business owners and the State of Washington, which holds a monopoly on the sale of bottled liquor. The history of Prohibition within the United States reflects the difficulty of using the law alone to battle socio-medical problems on a broad scale. While legal measures may heighten awareness of issues and raise obstacles to obtaining alcohol, the complexity of alcoholism in Native communities will undoubtedly require the concerted effort of legal scholars, social scientists, and traditional healers to resolve.
 

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Banished Snoqualmie Tribe Members at Seattle's Federal Courthouse (Seattle Times)

"It's just like death" 

"We were treated like criminals" 

“It’s ripping a big family apart”

These comments from Linda Sweet-Baxter, Carolyn Lubenau, and Anita Christansen arose from a recent court hearing on the banishment orders issued by the Snoqualmie Tribe, affecting nine (now “former”) Tribal members. Along with the substantive and cultural issues involved in the banishments, another point of interest was the venue for the hearing – the Federal Court for the Western District of Washington.

The banished members brought legal action in federal court under the Indian Civil Rights Act, alleging the leadership of the Snoqualmie Tribe denied them their right of due process, including adequate notice and an opportunity to speak on their own behalf. The challenges facing the Court went beyond the legal principles at issue, as the non-Native judge, court reporter, and lawyers struggled throughout the hearing to pronounce words in the Tribe’s Lushootseed language.

While federal courts are well-equipped to deal with issues of Constitutional, federal, and even state law, their ability to deal effectively with the political, cultural, and familial complexities of Tribal banishment cases is a significant concern. On a more fundamental level, there is a question of sovereignty involved in reviewing a Tribe’s decision regarding who is and is not one of its members. With the increasing use by Tribes of banishment as a method of criminal (and sometimes political) punishment, legal scholars and advocates must analyze and establish the appropriate boundaries between federal protection under ICRA and a Tribe’s inherent jurisdiction over its membership.
 

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