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

The Confederated Tribes and Bands of the Yakama Nation have passed a resolution requiring any sex offender who lives or works on the Yakama Indian Reservation to register with the Nation’s law enforcement agencies. The Yakama Nation is the first government in the Yakima Valley of Washington State to require sex offenders to not only register if they live on the reservation, but also if they live elsewhere but are employed on the reservation.

The registration requirement applies to all persons whether Native or non-Native, and carries penalties of up to one year in jail and a $5,000 fine for non-compliance.
 

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Attorneys from Navajo Public Defender, Foster Pepper, and UW Native American Law Center

Attorneys of the Navajo Nation’s Office of the Public Defender are participating in advanced litigation skills training seminars this week in Window Rock, Arizona, sharpening their skills in criminal case investigation and pre-trial evidentiary practice.

The training program is conducted jointly by the University of Washington’s Native American Law Center and Foster Pepper PLLC’s Native American Legal Services Group, and provides in-depth instruction and practical exercises in strategic case planning, conducting discovery, motions practice, and the role of Navajo Fundamental Law in the contemporary judicial system. The program culminates at the Supreme Court of the Navajo Nation, where the Public Defenders will observe and analyze oral arguments before the Nation’s highest court on issues pertaining to defense of those accused of Navajo Criminal Code violations.
 

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Professor Ron Whitener - UW Native American Law Center

The John D. and Catherine T. MacArthur Foundation has just announced a $225,000 grant award to the University of Washington’s Native American Law Center, which will fund the Center’s ground-breaking new program to help Tribal communities develop strategies to address the needs of Native American children in state and Tribal juvenile justice systems. The program and grant were conceived and will be managed by Professor Ron Whitener, a Director of the University’s Native American Law Center. Professor Whitener is Assistant Professor of Law and the Director of the Tribal Court Criminal Defense Clinic at the University, 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 MacArthur Foundation is an international organization that supports creative people and effective institutions committed to building a more just, verdant, and peaceful world. In addition to selecting the MacArthur Fellows, the Foundation works to defend human rights, advance global conservation and security, make cities better places, and understand how technology is affecting children and society.
 

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In its just-released opinion in Solis v.Matheson, the 9th Circuit Court of Appeals has held that the federal Fair Labor Standards Act (FLSA) applies to Tribal businesses, whether located on-Reservation or not, and that federal enforcement agencies can enter upon Tribal lands and search records to determine compliance.

The Solis case involves a claim for payment of overtime wages by an employee of a Native-owned retail operation. The Puyallup Tribe in Washington state has a store known as Baby Zack’s Smoke Shop located on trust land within its Reservation. Baby Zack’s sells tobacco products and sundries to both Tribal members and non-Natives, and regularly employs both Native and non-Native workers. An employee filed a claim for unpaid overtime wages against the owner of Baby Zack’s, and the Federal District Court entered judgment concluding that the FLSA applied to the shop, and that the failure to pay overtime wages violated the FLSA. The judgment enjoined the owners of Baby Zack's from violating the FLSA and ordered payment of $31,339.27 in overtime wages.

On appeal, the 9th Circuit not only affirmed the applicability of the FLSA to on-Reservation Tribal businesses, but went farther by specifically authorizing federal searches on Tribal lands as part of enforcement practices.

We conclude that the overtime requirements of the FLSA apply to the retail business at issue in this case. Because the FLSA applies to the retail business, we conclude that the Secretary had the authority to enter the Indian reservation to audit the books of the business, as she would regularly do with respect to any private business.

Accordingly, because the FLSA overtime provisions apply to the (shop), we conclude that the Secretary was authorized to make entry on to the reservation in order to locate records via her regular procedure in her effort to enforce the statute in question.

Unless the decision of the 9th Circuit is overturned by the US Supreme Court, Tribes and Native Corporations must now comply with the requirements of the FLSA, and assume they are subject to intrusive inspections by federal regulators. It therefore behooves Native entities to craft and adopt employment and labor policies that will serve their business interests while avoiding conflict with federal standards.
 

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Coal Mine In Navajo Territory (Youth Climate Movement)

Stating that “This case is at an end”, Supreme Court Justice Antonin Scalia closed the books on the multi-decade effort by the Navajo Nation to obtain a greater share of mineral royalties from the coal that is mined from their lands by non-Native corporations. The Nation’s claim was for back-royalties in excess of $600 million. The result: No acknowledgement of government wrongdoing, no renegotiation of the mineral lease terms, no more money for the Nation.

The Court’s holding in United States v. Navajo Nation dismissed the Nation’s assertion of a breach of fiduciary duty by the Secretary of the Interior, arising from his failure promptly to approve a royalty rate increase under a coal lease the Tribe executed in 1964.  The lease allowed the corporation currently known as the Peabody Coal Company to engage in coal mining on a tract of the Navajo reservation in exchange for royalty payments to the Tribe. After the initial 20-year lease elapsed in 1984, the Nation requested that the Secretary exercise his power to increase the royalty rate, and the Director of the Bureau of Indian Affairs for the Navajo Area issued an opinion letter imposing a new rate of 20 percent of gross proceeds.  However, the actual new royalty rate was set significantly lower, under circumstances the Nation found highly suspicious. In particular, the Nation alleged that the Secretary, following improper ex parte contacts with Peabody, had delayed action on Peabody’s administrative appeal in order to pressure the economically desperate Nation to return to the bargaining table. This, the complaint charged, was in violation of the United States’ fiduciary duty to act in the Tribal members’ best interests.

Although it did little to dispute the facts alleged in the Complaint, the Supreme Court rejected the Nation’s argument and claim. Scalia’s opinion holds that “The Government’s “comprehensive control” over Indian coal, alone, does not create enforceable fiduciary duties. “ The Court ruled that the Nation was required to identify an explicit statutory provision that created a particular trust obligation, rather than relying on the long-standing principles on which the trust relations between the federal government and Native communities has been based.  “Because the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, we do not reach the question whether the trust duty was money mandating. Thus, neither the Government’s “control” over coal nor common law trust principles matter.”

This case and its ultimate decision highlights the continuing tension between Tribes and the Department of Interior regarding the management – both environmental and financial – of natural resources in Native lands. Although certainly a disappointment for the Navajo Nation and other Tribes seeking to realize fair value for their mineral wealth, the Court’s opinion actually provides a roadmap for correcting the apparent inadequacy of federal fiduciary responsibilities to Tribes. Native communities and their representatives should initiate federal legislation that clarifies and explicitly enumerates the obligations of the federal government in handling Tribal resources, and provides meaningful and efficient remedies for a breach of trust that damages or materially undervalues Native resources.

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Last month the U.S. House Interior and Environment Appropriations subcommittee convened to hear from experts who testified about the ongoing epidemic of sexual violence against Native American and Alaska Native women in the United States. The subcommittee is about to address the FY 2009 Omnibus Appropriations Act and asked to hear from the experts in order to properly prepare a draft of the FY 2010 Interior and Environment Appropriations bill. The FY 2009 Omnibus Appropriations Act includes a $235 million and $85 million increase in funding from the previous year for the Indian Health Service (IHS) and the Bureau of Indian Affairs (BIA).

The subcommittee heard from several experts about the importance of using federal funding and established programs to help reduce cases of sexual violence against Native American and Alaska Native women. Experts also sited U.S. Department of Justice statistics, which show that Native American and Alaska Native women are more than two and a half times more likely to be raped or sexually assaulted than other women in the United States. Indigenous victims of sexual violence also face a more complicated series of federal, state, tribal and local laws that can be difficult to understand and access. Also, the agencies set up to help victims with the consequences of violence are incredibly underfunded, so victims have little support and assistance from social service agencies.

Fortunately, the explanatory statement in the FY 2009 Omnibus Appropriations Act mandates the BIA to collaborate with the IHS in order to figure out how to best reduce cases of sexual violence against indigenous women, so a strong partnership in developing a solution is focusing on the problem. The BIA is also asked to work with community advocates and tribal leaders to learn how they can establish clear standards of practice and standardized protocols for responding to sexual assaults and provide training programs with culturally sensitive protocols.

If the House and Senate continue to make the discussion regarding sexual violence against indigenous women a priority and promote infrastructure through funding and agency collaboration with victims, that will help the situation tremendously. BIA, IHS, and Native women will also work hard to help establish standardized sexual assault protocols and training for responding to cases of sexual violence against indigenous women. Hopefully the subcommittee's high standards for federal agencies that work with these victims will also have a positive effect in curbing this tragic epidemic. Only time will tell, but with all of the leadership and support behind positive initiatives decreasing sexual violence against Native American and Alaska Native women, it is a much more hopeful wait.

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The King County Court Appointed Special Advocate (CASA) program has announced the Seattle law firm of Foster Pepper PLLC as the 2009 recipient of the Judge David Soukup Pro Bono Recognition Award.  W. Gregory Guedel, Chair of the firm’s Native American Legal Services Group, and Pro Bono Counsel Joanna Plichta Boisen will receive the award on behalf of the firm on April 25, 2009 in Seattle.

The award, named for the jurist who founded the nation’s first CASA program in Seattle in 1977, is presented annually to an organization demonstrating noteworthy commitment to CASA’s mission of providing free legal service for children up to 11 years old who have allegedly been abused and/or neglected.  The need for CASA advocacy in Native Communities is especially great, as Native American children are disproportionately involved in legal issues involving foster care and custody.  Foster Pepper is being recognized for its work in creating a new legal deskbook for practitioners serving Native American children under the federal Indian Child Welfare Act (ICWA), and for its landmark ICWA seminar that provided training to a national group of CASA volunteers serving Native Communities. Video and audio of the seminar can be accessed here or as podcasts through iTunes.

Dependency/CASA Pro-Bono Coordinator Janet Harris stated in announcing the award:

We are still reeling from the fabulous day we spent with you and our guests at the Indian Child Welfare Act seminar. So much work and effort on your part made the event a resounding success and helped the CASA program along the path to establishing our own Native American unit.
 

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The week of 13 April 2009, PBS will premier its television series We Shall Remain, a five-part documentary on Native American history. The series will focus on the sovereign status and societal structure of Native American nations from before the arrival of the Mayflower through Wounded Knee and beyond. Beginning with Massasoit’s dealings with early English colonists, the programs feature in-depth analysis and historical reenactments of the complex and turbulent relations between Native communities and European settlers, and the enduring efforts of Tribes and their members to preserve and enhance their sovereignty in North America.

We Shall Remain is the product of collaboration between PBS and Native filmmakers, in coordination with the ReelNative film project. The American Library Association’s President Loriene Roy (White Earth Anishinabe) has developed companion-piece literature that will be distributed to 17,000 public libraries throughout the United States.
 

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Native American Legal Update can now be followed by users of Twitter, and announcements of new articles on this site will sent through that medium.  Twitter subscribers can now receive legal news updates on their cellular phones and other mobile devices, and forward articles of interest to fellow subscribers.  Follow us on twitter @nativelegal.

Twitter is a free social networking and micro-blogging service that enables its users to send and read other users' updates known as tweets. Tweets are text-based posts of up to 140 bytes in length which are displayed on the user's profile page and delivered to other users who have subscribed to them. Senders can restrict delivery to those in their circle of friends or, by default, allow anybody to access them. Users can send and receive tweets via the Twitter website, Short Message Service (SMS), or applications such as Tweetie, Twitterrific, Twitterfon, TweetDeck and feedalizr. The service is free to use over the Internet.
 

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Ko`olau pali at Kane`ohe Bay (koolaupokohcc.org)

In its recent decision in State of Hawaii v. Office of Hawaiian Affairs, the U.S. Supreme Court ruled that the 1993 apology by the US Congress for the overthrow of the Hawaiian monarchy in 1893 does not prevent the State of Hawaii from selling 1.2 million acres of land obtained after that “regime change”. The Court held that “nothing in the resolution was intended to serve as a settlement of any claims against the United States”, and that it provided no legal authority for a return of government-managed land to Native Hawaiians.

Congress issued the Apology Resolution on the 100th anniversary of the removal of Queen Liliuokalani as monarch of the Hawaiian Nation. The apology acknowledged the illegality of the U.S. government’s actions in overthrowing Hawaii’s sovereign government, creating a “provisional government”, and five years later passing the Newlands Resolution, which annexed Hawaii as a U.S. territory. The Apology noted that “the health and well-being of the Native Hawaiian people is intrinsically tied to their deep feelings and attachment to the land.” Congress further apologized “to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination” and recognized that “the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.”

Hawaii Attorney General Mark Bennett, who argued the state’s case in front of the U.S. Supreme Court, said he was “very pleased with the nine to nothing ruling by the Supreme Court in our favor. The ruling addressed our two points on appeal. The first, that the apology resolution does not in any way affect the state’s legal rights, and, second, that the state has the same absolute deed title to the public lands that the United States had, and the Supreme court confirmed that very clearly in its opinion. The state owns these lands in fee for the benefit of all of the people of Hawaii.”

Native Hawaiian activists and supporters remain unconvinced. “If the Apology Resolution has no teeth in the court of the conqueror, then how is it that the Newlands Resolution that unilaterally annexed Hawaii does?” said J. Kehaulani Kauanui, associate professor of American Studies and Anthropology at Wesleyan University.

“This is a legal fiction to cover up the fact that the U.S. government accepted the stolen lands from the Republic of Hawaii government that confiscated these lands after the overthrow of the Hawaiian Kingdom." Professor Kauanui stated. "The Republic of Hawaii could not have ceded these lands in “absolute fee” to the United States because they were stolen. The U.S. government accepted the stolen goods and cannot prove title because they were stolen without Hawaiian people’s consent and without compensation.”
 

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