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

You have your community and your place to go.  We don't have that.  But we're still together…

They've got their rules, and you've got to fit into the slot.   But we know who we are.

It kind of hurts, naturally, but it's not the end of the line…

These sentiments were expressed by members of Montana's Little Shell Tribe, after receiving notice this week that their petition for federal recognition had been denied – more than 30 years after it was first filed.

The Bureau of Indian Affairs’ 242-page rejection decision acknowledged that 89 percent of the Little Shell can trace their lineage to the Pembina Band of Chippewa Indians, but stated the Little Shell had failed to show enough "cohesion" during the early 1900s, after many of the Tribe's members had been uprooted and migrated between northern Montana and southern Canada. The Tribe has not had a secure homeland since the late 1860s, when Chief Little Shell and his people were excluded from a federal treaty signed with related Tribes.

As discussed previously on this site, the BIA uses an extremely complex and subjective set of criteria in analyzing petitions for federal recognition. For Little Shell, the BIA decided that members of the Tribe in Montana lived primarily in "already existing, largely multiethnic settlements." According to the BIA, "In none of these multiethnic settlements did the petitioner's ancestors constitute a majority or even a significant percentage of the population." Little Shell’s petition was thus denied based on a perceived lack of social and political cohesion.

For Tribes like Little Shell, the next step in the struggle for recognition is to seek legislative backing in Congress, in the hope that recognition can be obtained through pressure and laws enacted by elected representatives. Hopes for progress in this area were briefly raised by the announcement of President Obama's upcoming Tribal Nations conference in November. Unfortunately, invitations to the event were only sent to a select group of Tribes – those that already possess federal recognition.
 

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This week the National Public Radio program “All Things Considered” airs a two-episode series on Tribal economic development in the Southwest. The programs highlight the diverse issues, challenges, and opportunities for Tribes in different locations and which possess different levels of resources. The program focuses on two particular Native economic development models: The Navajo Nation and The Salt River Pima – Maricopa Indian Community.

Interviews include:

Joe Shirley, Navajo Nation President

Martin Harvier, Vice President of the Salt River Pima – Maricopa Indian Community

Quannah Dallas, Salt River Pima’s Economic Development Manager

Brett Isaac, Shonto Community Development Corporation

Joseph Kalt, Director of Harvard University’s American Indian Economic Development Project

Greg Guedel, Chair of Foster Pepper PLLC’s Native American Legal Services Group

Part I of the program, focusing on the Navajo Nation, can be downloaded HERE.

Part II of the program, focusing on the Salt River Pima – Maricopa Indian Community, can be downloaded HERE.

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Culvert for Fish Passage (ADF&G)

In a landmark 1974 ruling, U.S. District Judge George Boldt ruled Tribes located near Puget Sound in Washington State hold treaty rights to half the region's fish resources. Thirty-five years later, another federal judge is presiding over a Tribal lawsuit to enforce the state's obligation to actively protect fish habitat. "The judge has already found that there's a treaty right to protect fish habitat," said Robert Anderson, director of the University of Washington's Native American Law Center. The question now is "how far the federal courts are willing to go to compel that result."

U.S. District Judge Ricardo Martinez ruled in 2007 that treaty rights required the state to take action to enhance salmon runs and fish habitat. He urged the state and Tribes to work together on solutions, but negotiations proved fruitless. More than 1,000 culverts between the Columbia River and British Columbia, most of them owned by the Washington Department of Transportation, are presently blocking or limiting access by fish to hundreds of miles of streams. The cost to implement repairs and provide fish with a smooth and unobstructed water flow may exceed $1.5 billion.

"The problem is the cost is just huge," Washington State Department of Transportation Secretary Paula Hammond said. "We already don't have enough money to maintain and preserve our existing highway system." The Tribes want the culverts fixed within two decades, but state lawyers say that would cost $165 million every two years — 10 times what the state spends fixing culverts now. The state's alternative plans wouldn't likely change the costs, but the work would take 50 or more years to complete.
 

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(Dailyyonder.com)

President Barack Obama will host a White House Tribal Nations Conference  on November 5, 2009 from 9 a.m. – 5:30 p.m., with leaders of all 564 federally recognized Tribes invited.  Each federally recognized Tribe can send one representative; it is unclear whether Tribes that do not yet have federal recognition can attend. Indian Country Today reports that the meeting will be held at the Sidney R. Yates Auditorium of the Department of the Interior in Washington D.C..

“I look forward to hearing directly from the leaders in Indian country about what my administration can do to not only meet their needs, but help improve their lives and the lives of their peoples,” Obama said. “This conference will serve as part of the ongoing and important consultation process that I value, and further strengthen the nation-to-nation relationship.”

W. Ron Allen, a member of the executive board of the National Congress of American Indians and Chairman of the Jamestown S’Klallam Tribe, said the White House would have been a more impressive setting, but believes it’s important to hold the meeting in an environment that will be conducive to constructive dialogue. Allen emphasized that Tribal leaders expect to be able to present their views and receive specific answers and policy outlines from the President. “We do not want this to be a photo op.”

Allen said many NCAI members want the President to begin showing action on campaign promises to advance self-determination, self-governance and self-reliance for all 564 American Indian and Alaska Native nations. “We are hopeful that he will reaffirm and strengthen his administration’s commitment to the ‘government-to-government’ relationship including clear instruction to all departments and agencies under his executive authority,” Allen said.

MyTribeTV, a Native-owned business in Seattle, will provide online coverage of the conference. The event will be streamed at tribalsummit.mytribetv.com.
 

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The first billion-dollar tranche of Tribal Economic Development Bonds has now been allocated by the federal government, with the funds being spread over 58 projects for Tribes throughout the country.  The largest dollar allocation for any single project in this financng tranche is $22,565,088.46, which was authorized for over 30 projects, with the remainder receiving smaller authorizations. 

Examples of approved projects in the first financing round include:

Confederated Tribes of the Warm Springs Reservation of Oregon: Water Infrastructure and Tourism Facility Improvements -- $22,565,088.46

Lummi Nation (Washington): Environmental and Transportation Infrastructure -- $22,565,088.46

Santee Sioux Tribe of Nebraska: Health Facility -- $13,539,053.08

Pueblo of Acoma (New Mexico): Manufacturing Facility -- $8,273,865.77

Mille Lacs Band of Ojibwe (Minnesota): Education Facility -- $6,279,393.17

The first tranche of bond authorization was significantly oversubscribed, with the IRS receiving many more applications for projects than the available funding could support.  In an unusual move, rather than reject certain projects completely, the IRS imposed an across-the-board percentage cut to nearly all projects that were approved.  As a result, many projects did not receive the full amount of funding sought, and Tribes may need to revise the scope of work to achieve completion with available funds.

The complete list of Tribal projects authorized for bond issues in this first phase is available here.

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In its new report entitled "Voting Rights In Indian Country", the American Civil Liberties Union states that Native Americans continue to face a a variety of discriminatory election practices, including: at large elections; redistricting plans that diluted Native American voting strength; the failure to comply with one person, one vote; unfounded allegations of election fraud on Indian reservations; discriminatory voter registration procedures; onerous identification requirements for voting; the lack of minority language assistance in voting; and the refusal to comply with the preclearance provisions of Section 5 of the Voting Rights Act.  The report's findings are based on the ACLU's investigations conducted for voting rights litigation cases in Colorado, Montana, Nebraska, South Dakota, and Wyoming.

The report recounts a litany of abuses endured by Native communities throughout the 19th and 20th Centuries, and draws a line of impact to the present day.

One consequence is a depressed socio-economic status that limits the ability of tribal members to participate effectively in local, state, and national elections and to enforce the anti-discrimination provisions of the Voting Rights Act and other federal laws protecting minority voting rights. Voting is significantly polarized along racial lines, and little meaningful interaction exists between the Indian and non-Indian communities, especially in the towns and communities that border the reservations. This lack of interaction and access to the majority community makes it very difficult for Indians to elect candidates of their choice to office in jurisdictions in which they are a numerical minority.

Indian political participation is further diminished by the disproportionate number of tribal members disfranchised for commission of criminal offenses. There is a pattern of racial profiling of Indians by law enforcement officers, the targeting of Indians for prosecution of serious crimes, and the imposition of lengthier prison sentences upon Indian defendants. These injustices result in the higher incarceration of Indians and dilute the overall voting strength of Indian communities.

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(Resource Centre for The Rights Of Indigenous Peoples)

President Barack Obama will host a Tribal Nations Conference discussing issues of importance to Native Americans on November 5, the White House announced Monday.  Representatives from each the country’s 564 federally recognized tribes will be invited to participate.

“I look forward to hearing directly from the leaders in Indian Country about what my administration can do to not only meet their needs, but help improve their lives and the lives of their peoples,” Obama said in a written statement.  “This conference will serve as part of the ongoing and important consultation process that I value, and further strengthen the nation-to-nation relationship.”
 

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Casualties of Wounded Knee (Eaglesnestcenter.org)

Tucked within the voluminous pages of a military spending bill, the Senate has approved a resolution apologizing to Native Americans for years of “ill-conceived policies” and acts of violence by United States citizens. Lawmakers have called the resolution “a symbolic gesture meant to promote a renewed commitment to Tribal communities”. It was introduced by Senators Sam Brownback, Republican of Kansas, and Byron L. Dorgan, Democrat of North Dakota. The Senate approved a similar resolution in 2008, but the House of Representatives took no action to endorse it or enact it into law.

Senator Brownback’s website offers his views on the resolution:

“I am pleased that my colleagues have decided to move forward with a formal apology from the federal government to Native Americans. This is a resolution of apology and reconciliation, and is a step toward healing divisive wounds. With this resolution we have the potential to start a new era of positive relations between tribal governments and the federal government. For too much of our history, federal-tribal relations have been marked by broken treaties, mistreatment and dishonorable dealings. With this resolution, we can acknowledge past failures, express sincere regrets and establish a brighter future for all Americans.”

However, the website goes on to state:

The Native American Apology Resolution will not authorize or serve as a settlement of any claim against the United States. The resolution does not denigrate the bravery and self-sacrifice of Americans who have honorably served the nation in the military throughout our history. Rather, this resolution is intended to be the beginning of a much-needed reconciliation.

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