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

The Grand Governing Council of the American Indian Movement (AIM) has released the following statement in response to President Obama's recent address before the United Nations General Assembly in New York.

In President Obama's speech to the United Nations on September 23, 2009, he spoke of a 'new direction'. Two years ago, four solitary nations voted against the United Nations Declaration on the Rights of Indigenous People, they were Canada, Australia, New Zealand, and the United States of America. The Australian government has since reversed its vote and now support the international human rights standard toward Indigenous people. The American Indian Movement asks the question of the Obama Administration: Will his administration recognize and support the international standard approved by the vast majority of the world's nations?

The United Nations' 64th year brings world leaders together to our sacred homeland to discuss the effects of the world's problems to humankind. The American Indian Movement respects the right of all world leaders to speak. We support the right of Moammar Al Gathafi, leader of Libya. We respect the right of Evo Moralas, President of Bolivia. We respect the right of Hugo Chavez, President of Venezuela. We respect the right of Mahmoud Ahmadinejad, President of Iran. We respect the right to speak at the United Nations of all the world leaders visiting our homeland.

We often talk in terms of the first world, or the west; or the second world, the east; or the third world, or the non-aligned nations. Another important dimension to this concept is the fourth world of natural and Indigenous people. Peoples whose populations oftentimes go beyond geo-political boundaries. While these struggles have been going on for hundreds of years, the international community has, for the most part, ignored this reality. One of the greatest crimes against humanity occurred right here in the United States of America. Support for the Declaration on the Rights of Indigenous People is a start to right this great wrong.

AMERICAN INDIAN MOVEMENT GRAND GOVERNING COUNCIL
MINISTRY FOR INFORMATION
P.O. Box 13521
Minneapolis MN 55414
612/ 721-3914 . fax 612/ 721-7826
Email: aimggc@worldnet.att.net
Web Address: http://www.aimovement.org

Clyde Bellecourt, co-founder American Indian Movement
612.251.5836

Bill Means, International Indian Treaty Council
612.386.4030

Chief Terrance Nelson, Vice Chairman American Indian Movement
204.782.4827
 

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On Saturday members of the Snoqualmie Indian Tribe voted to reinstate all nine tribal members banished after an election dispute. The nine fought the banishment in federal court, where a judge earlier this year partially overturned the banishment, stating the tribe had not followed due process. The membership was tasked with reconsidering the banishment Saturday.

The tribe re-gained federal recognition only in 1999, has about 650 members, and opened a new casino just last fall near Seattle. According to reports, the Snoqualmie rolled the dice on a mountain of debt — $375 million — for a chance at prosperity.

At the meeting on Saturday the tribe also discussed what to do about a leadership split on its tribal council that led to a breakdown of the function of tribal government.  It was reported that the council was so badly split, in part over another disputed election last year, that council members refused to regularly meet with each other. Late last year elders dissolved the feuding council and took control of the tribe until a new election could be held, but did so without constitutional authority.

According to reports the tribal administrator resorted to locking tribal offices, and the federal government froze some of the tribe's funding. After mediation suggested by the federal Bureau of Indian Affairs this month, tribal offices were reopened, and grant money unfrozen. An interim council — the one in place before the disputed May election — was put in place until a new election is held. The membership Saturday agreed to schedule a new election, perhaps as soon as in three weeks.

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(Ken Lambert/Seattle Times)

While the appropriateness of government intervention in private business is a hotly-debated topic around the world, a clear truth is emerging closer to home: cohesive and sound governance is a crucial element for economic development in Native American communities. The proof comes both from success stories such as Tulalip and Pechanga, as well as the cautionary tale currently playing out within the Snoqualmie Tribe.

The Snoqualmie Tribe regained federal recognition in 1999 and last November opened a showpiece casino a half-hour from downtown Seattle The casino, financed with $375 million in debt, was conceived as a means of bringing prosperity to the Tribe's approximately 600 members. Instead, political infighting has brought turmoil, reduced revenue, and uncertainty regarding the Tribe’s economic future.

The problems stem from socio-political divisions that divided the Tribe’s governing body and rendered it unable to function effectively. "They were a split council and would not come together for joint meetings off and on since May," said Judy Joseph, superintendent for the Bureau of Indian Affairs (BIA) Puget Sound Agency. "To maintain a government-to-government relationship, they have to be a viable Tribal government," Joseph said. "If there is any question about that, it causes red flags to go up, and they were split, they were not meeting."  In August, the Tribe's administrative offices were padlocked and some of its federal funds frozen. Elders stepped in to dissolve the council and take charge until new elections could be held — but they had no constitutional authority to do that. The Tribe was facing the prospect of the U.S. government assuming administrative control of the Tribal government. The BIA offered mediation this month, which resulted in reinstatement of the council that was in place before the disputed May election.

Meanwhile, the new casino has only been producing one-fourth of the revenue originally budgeted, and its operations are mired in administrative and regulatory problems. Unresolved federal audit findings could expose the Tribe to significant liability, and until recently federal funds allocations to Snoqualmie were frozen by the U.S. government. To address these significant issues, the Tribe's general membership will meet this month to consider election procedures and set a date for a new council election.

While dissension and differences of opinion are common for any political entity, the need for Tribes to maintain a solid, functioning government structure is of paramount importance for both political and economic purposes. Both the federal government and private investors are wary of contributing capital in places where leadership is in doubt, making it crucial for Tribes to demonstrate that their decision making bodies and procedures are stable.

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As reported in the Wall Street Journal, the Department of Interior is reconsidering a Bush administration policy that limited Tribes from developing off-reservation casinos unless the sites were within “commuting distance” of the reservation. The new policy would eliminate that proximity requirement and allow Tribes to build casinos on trust land farther from their reservations – and thereby likely closer to larger population centers that would offer more customers. Some areas Tribes are considering are actually on their ancestral lands, but were separated from the Tribe’s main land base through 19th Century treaties.

Over 20 Tribal casinos on non-reservation land exist, and about 20 tribes have off-reservation plans in the works. The Confederated Tribes of Warm Springs of Oregon want to develop a casino along the Columbia River Gorge, and the St. Regis Mohawks have plans for a site in the Catskill Mountains, about 350 miles away from the Tribe's reservation -- but less than a two-hour drive from New York City. Some state governors such as David Paterson of New York and Arnold Schwarzenegger of California have come out in favor of certain projects in recent months.

Despite concerns about the economy, some off-reservation casino projects near major population centers have been able to line up financing for construction and operations. A private investment company that has financed start-ups of major Indian casinos in Connecticut and New York, is acquiring a near 50% stake in Empire Resorts Inc., the company that has been working with the St. Regis Mohawks on plans for a casino in Monticello, N.Y.

Tribes across the country have opened hundreds of casinos since the 1987 U.S. Supreme Court ruling that loosened state restrictions on Tribal gaming. In 1988, Congress authorized development off-reservation casinos. Interestingly, some Tribes that developed the first casinos are now working to block off-reservation gaming by other Tribes, and Senators from Nevada, California and Arizona wrote Interior Secretary Ken Salazar to oppose off-reservation gaming, saying it "violates the spirit" of Tribal gaming law.

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Foster Pepper PLLC and KeyBank are Co-Sponsors of the huge Native American Economic Development Conference to be held at the Westin in Las Vegas September 16-18, 2009. The far-ranging seminar will cover topics of immense importance to Tribal economies, including:

• Tribal Leaders Roundtable: The Impact of President Obama’s Administration
• Economic Development Bonds and the Federal Stimulus Package: Effects on Tribal Financing
• Tribal Enterprises Facing Bankruptcy
• CEO Roundtable: Private Enterprise Boards vs. Tribal Governments
• CFO Roundtable- External Diversification vs. Internal Reinvestment: Weighing Risk Management Issues
• Economic Development Roundtable: Stimulating Revenue Growth
• Effective Master Planning
• Design and Construction Roundtable: Climbing out of a Recession
• Strategic Marketing in a New Economic Era
• Using Sports and Entertainment to Maximize Casino Traffic
• Planning for Retirement in Indian Country

The conference presenters possess unparalleled expertise in Tribal economic development issues, and include:

• Mellor Willie, Executive Director, National American Indian Housing Council
• Elaine Fink, Chairperson, Northfork Rancheria of Mono Indians
• Henry Cagey, Chairman, Lummi Nation
• Bob Garcia, Chairman, The Confederated Tribes of the Coos, Lower Umpqua, and Siuslaw Indians
• Robert Martin, Chairman, Morongo Band of Mission Indians
• Georgia Noble, Chairperson, Sac & Fox National Business Enterprise Board
• Mel Sheldon, Chairman, Tulalip Tribes of Washington
• Glenn Hall, CEO, Bishop Paiute Tribe
• Robert Mele, CFO, Seneca Construction Management Corporation
• Robert Winter, CEO, Navajo National Gaming Enterprises
• Chris Kelley, CFO, Viejas Band of Kumeyaay Indians
• Eletta Tiam, CFO, Nisqually Tribe
• Michael Marchand, President, Affiliated Tribes of Northwest Indians Economic Development Corporation
• Virgil Moorhead, Chairman, Big Lagoon Rancheria
• Morris Reid, Chairman, Picayune Rancheria of Chuckchansi Indians
• Ivan Posey, Chairman, Shoshone Tribe of the Winder River Reservation
• Theresa Two Bulls, President, Ogalala Sioux Tribe of The Pine Ridge Reservation
• Cedric Black Eagle, Chairman, Crow Nation
• Louis J. Manuel Jr., Chairman, Ak-Chin Indian Community
• Michael Broderick, Director of Marketing, Lake of the Torches Resort Casino
• Mary Galbraith, Director of Strategic Marketing, Cherokee National Entertainment
• Michael L. Bearhart, Director of Gaming, St. Croix Casino & Hotel
• Scott Eldredge, General Manager, Santa Ana Start Casino

Additional conference information and registration information can be accessed through Pier Conference Group.

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The economic downturn is opening some previously-uncharted legal territory - the question of applicability of federal bankruptcy laws and procedures for troubled Tribal enterprises. 

The Mashantucket Western Pequot Tribal Nation, owner of the massive Foxwoods Resort Casino, is seeking to restructure at least $1.45 billion in debt.  With gaming revenues in steep decline due to a lack of players, Foxwoods is at risk of becoming the biggest Tribal casino company to default on its debt. 

The looming cash crunch highlights the different economic and legal landscape in which Tribal enterprises operate. “They can’t do the types of things other debtors can in a restructure,” says Megan Neuburger, an analyst at Fitch Ratings in New York. “Tribal casinos can’t do a debt-for-equity swap. They can’t raise cash by selling off assets on Tribal land to repay creditors."  Standard & Poor’s has cut its Mashantucket rating four steps to CCC and placed the debt on credit watch.  Creditors probably can’t take over assets or operations of casinos on Tribal land, which are sovereign nations, as they may with commercial bankruptcies, Neuburger said. That leaves them little choice other than to restructure debts and work with the Tribe.

No Tribal casino has yet tested federal bankruptcy laws.  “Bankruptcy law does not apply to Tribal situations in the same way it does to a commercial situation,” Neuburger said.  Michael Thomas, chairman of the Mashantucket Pequot Tribal Council, told members that the Tribal government would be paid first, before bankers or bondholders.  “It might be posturing, but the Tribe is indicating that it might put itself, the equity holder, ahead of the debt, ignoring corporate law,” said Lawrence Klatzkin of municipal bond broker Chapdelaine Credit Partners. “It probably won’t happen, but if it does, who’s to say other Tribes don’t say, ‘If Foxwoods doesn’t need to meet its U.S. legal obligations, maybe I don’t either.’”

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