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

(Allposters.com)

By a vote of 245-164, the United States House of Representatives has passed the Native Hawaiian Government Reorganization Act. If subsequently passed by the Senate and signed into law by the President, the Act would transfer a percentage of public-owned lands to a native Hawaiian government within the state of Hawaii. The legislation would collect some 400,000 ethnic Hawaiians scattered across the country into a newly affiliated tribe, eventually endowed with the powers of a sovereign state, including freedom from state taxes and regulations and separate police power.

"The passage of the Native Hawaiian Government Reorganization Act is an important milestone for all the people of Hawaii," said U.S. Senator Daniel K. Akaka, the bill's author. "We have a moral obligation, unfulfilled since the overthrow of Queen Liliuokalani, that we are closer to meeting today.  I am optimistic about bringing the bill to the Senate floor this year."

If enacted into law in its current form, the Act would:

Establish the U.S. Office for Native Hawaiian Relations within the Office of the Secretary of the Interior.

Establish the Native Hawaiian Interagency Coordinating Group.

Recognize the right of the Native Hawaiian people to reorganize the single Native Hawaiian governing entity to provide for their common welfare and to adopt appropriate organic governing documents.

Establish a Commission to: (1) prepare and maintain a roll of the adult members of the Native Hawaiian community who elect to participate in such reorganization; and (2) certify that the adult members of the Native Hawaiian community proposed for inclusion on the roll meet the definition of Native Hawaiian.

Outline the process for the reorganization, which includes forming a Native Hawaiian Interim Governing Council.

Reaffirm the special political and legal relationship between the United States and the Native Hawaiian governing entity upon certification required by the Secretary regarding the organic governing documents and the election of the entity's officers.

Extend federal recognition to the governing entity as the representative governing body of the Native Hawaiian people.

Authorize the United States, upon the reaffirmation of such political and legal relationship, together with the state of Hawaii, to enter into negotiations with the governing entity to lead to an agreement addressing specified matters, including the transfer of lands, natural resources, and other assets, and the protection of existing rights related to such lands or resources.

Opposition to the bill has arisen from numerous quarters. Hawaii’s Governor Linda Lingle has withdrawn her previous support and stated: “This structure will, in my opinion, promote divisiveness and litigation rather than negotiation and resolution.” During a Congressional hearing in 2009, U.S. Civil Rights Commission member Gail Heriot asked Congress: "If ethnic Hawaiians can be accorded tribal status, why not Chicanos in the Southwest? Or Cajuns in Louisiana?"
 

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Vancouver Olympic Logo; Authentic Inuit Inukshuk (Arcticvoice.org)

The ubiquitous symbol of the 2010 Winter Olympics in Vancouver, Canada comes from an ancient cultural icon and practical tool of the Inuit people – the inukshuk. An inukshuk is a stack of stones traditionally used by the Inuit of the arctic to mark anything from a hunting spot to a food cache. In 2005, the Vancouver Organizing Committee for the Olympics chose a multicolored humanoid version of an inukshuk as the games' official 2010 emblem.

That set off a flurry of commercialization that has seen the inukshuk placed on an incredible variety of products and displays, including;

Key chains, bottle openers, T-shirts, snow globes, playing cards, and rain gear for dogs

The Inukie Cookie, which lets you build your own inukshuk out of maple-flavored shortbread

The Vancouver Aquarium’s 10-foot-high inukshuk made out of 4,368 cans of sustainably fished salmon and tuna

Canadian Tire Corp.’s $38.00 inukshuk garden statue

Richmond, BC’s six-story inukshuk built from several empty cargo containers

Chocolatier Daniel’s 320-pound inukshuk made of solid Belgian chocolate

No official program exists to provide a share of inukshuk product revenue to First Nations. However, some 1,000 Inuit carvers in the arctic territory of Nunavut have been hired to make authentic inukshuit for sale at the Olympics, says Dennis Kim, head of merchandising for the Vancouver Organizing Committee. A 15½-inch statue costs around $1,880.
 

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The Justice Department has made public its plan of action, submitted to the Office of Management and Budget (OMB), to improve consultation and coordination between the Justice Department and tribal nations, as directed by President Barack Obama’s Memorandum on Tribal Consultation. The Presidential Memorandum, signed on Nov. 5, 2009, at the White House Tribal Nations Conference, directed each federal agency to submit to OMB within 90 days a plan of action to implement President Clinton’s Executive Order 13175 on Consultation and Coordination with Tribal Governments. The Justice Department’s plan was submitted to OMB on January 27, 2010.

The Justice Department’s plan, which is available HERE, identifies the steps it will take to develop a comprehensive consultation and coordination policy with tribal nations, after robust tribal input. In addition, the department’s submission makes a commitment to:

• expand the role of the Office of Tribal Justice;
• create a Tribal Nations Leadership Council to ensure ongoing communication and collaboration with tribal governments;
• convene consultations between tribal leadership and U.S. Attorneys whose jurisdictions include federally-recognized Indian tribes;
• mandate annual meetings between the department’s grants offices and tribal leadership to discuss grants policies, concerns or funding priorities;
• create a new federal-tribal taskforce to develop strategies and guidance for federal and tribal prosecutions of crimes of violence against women in tribal communities; and
• publish a progress report within 270 days of the Presidential Memorandum evaluating the implementation of these reforms.

The Justice Department’s plan of action was driven largely by input gathered from the department’s own Tribal Nations Listening Session in late October 2009 and from the department’s annual tribal consultation on violence against women, as well as from written comments submitted by tribal governments, groups and organizations to the Justice Department and tribal consultation conference calls conducted by the Office of Tribal Justice.
The department’s plan to improve consultation and coordination with tribal governments comes a month after Attorney General Eric Holder announced sweeping reforms within the department to improve safety on tribal land. The Attorney General also announced that the Justice Department’s FY 2010 appropriation included an additional $6 million for Indian Country prosecution efforts, enabling the department to bring the federal justice system closer to Indian Country. More information is avalable HERE.       

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When the Lac du Flambeau Tribe fell behind on repaying $50 million in bonds that financed its casino in northern Wisconsin, bond issuer Wells Fargo asked a federal judge to appoint a receiver to run the casino and increase payments on the debt service. After having its lawsuit dismissed in federal court on the basis of the bond agreement being an unauthorized management contract, the bank has made a motion to amend its original Complaint.

Wells Fargo respectively submits that the Court’s dismissal was contrary to Seventh Circuit precedent as well as fundamental fairness and basic due process because: (i) Wells Fargo was not granted leave to amend its Complaint to demonstrate that the defendant had waived sovereign immunity; and (ii) Wells Fargo was not permitted to present evidence and argument regarding whether the Trust Indenture was a “management contract” under the Indian Gaming Regulatory Act (“IGRA”) and its related regulations or to respond to defendant’s evidence.

Wells Fargo’s proposed amended Complaint alleges 14 causes of action against the Tribe, including breach of contract, reformation of the bonds and the indenture, restitution, unjust enrichment, fraud, negligent misrepresentation, and conversion. A copy of the amended Complaint can be accessed HERE.  The amended Complaint asks the court to grant the following relief against the Tribe and in favor of Wells Fargo:

(1) Enter a judgment against the Defendant on each Count of the Complaint and
identified above;
(2) Order Defendant to pay Plaintiff such damages as have been sustained in
consequence of Defendant’s wrongful actions;
(3) Enter a declaratory judgment on the Bonds that Defendant has repudiated and breached the Bonds and is obligated to pay the full amount of principal and
interest;
(4) Enter a declaratory judgment that the principal and interest on the Bonds has been accelerated pursuant to the terms of the Trust Indenture;
(5) Order Defendant to pay all costs and expenses, including attorneys’ fees;
(6) Reform the Indenture and the Bonds to the extent necessary to conform with the Parties’ intent; and
(7) Order Defendant to provide restitution to Plaintiff in an amount to be determined by the Court.

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The second billion-dollar tranche of Tribal Economic Development Bonds has now been allocated by the federal government, with the funding authorization being spread over 76 projects for Tribes throughout the country. The largest dollar allocation for any single project in this financing tranche is $30,000,000.00, which was authorized for five projects, with the remainder receiving smaller authorizations.

Examples of approved projects in the second allocation round include:

Campo Band of Mission Indians in California: $30,000,000.00 for Renewable Energy, Tourism, and Wastewater Facilities

Delaware Nation in Oklahoma: $27,253,437.90 for Retail, Industrial, Tourism, Housing, and Renewable Energy Facilities

Ohkay Owingeh in New Mexico: $22,913,488.65 for Refinancing, Recreational, Governmental, and Commercial Facilities

Yankton Sioux Tribe in South Dakota: $10,934,616.39 for Retail, Farming, Renewable Energy, Tourism, and Governmental Facilities

Confederated Tribes of the Umatilla Indian Reservation in Oregon: $5,330,048.86 for Health Facilities

Skokomish Indian Tribe in Washington: $1,822,436.05 for Refinancing

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

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On Thursday, March 18, 2010 Gonzaga University School of Law in Spokane, Washington will be the site for a far-ranging conference on legal issues of importance to Tribal communities and their advocates.  Hosted by the Indian Law Section of the Spokane County Bar Association, the conference features nationally-recognized experts in numerous areas of law that are critical to Tribes.  Registration information is available HERE.  The conference itinerary and speaker list includes:

Thursday, March 18, 2010
8:00 a.m. Registration and Coffee

8:30 a.m. Introduction and Conference Overview
George Critchlow, Acting Dean, Gonzaga University School of Law, Spokane, WA
Juliana C. Repp, Esq., Chair, SCBA ILS, Spokane, WA
Moderator
Jessica Lee-Domebo, Esq., Chair Elect, SCBA ILS, Spokane, WA

8:40 a.m. The Indian Child Welfare Act – Tribal and State Perspectives (Identifying an Indian Child; Tribal staffing of ICW cases; domicile; utilizing Indian Child Welfare experts; status of Washington state programs)                                                                                                                                             Lorraine Parlange, Kalispel Tribal Attorney
Ricki Peone Haugen, M.S.W., Indian Child Welfare Expert, Spokane, WA
Buffy Nicholson, Social Worker III, CFS, Colville Tribes
Brandelle Whitworth, General Counsel, Shoshone-Bannock Tribes
Jodi Felice, Assistant Attorney General for State of Washington
 

10:15 a.m. Break (hosted by Crowell Law Offices)

10:30 a.m. Tribal Court Practice; Inter-Jurisdictional Issues Arising in Tribal Courts (Tribal Court practice overview; abstention, exhaustion, removal; inter-jurisdictional issues)
Juliana C. Repp, Attorney at Law, Spokane, WA
Trudy Flamand, Chief Judge, Colville Tribal Court
Suzanne Ojibway Townsend, Chief Judge, Confederated Tribes of the Grande Ronde Community of Oregon Tribal Court
Winona Tanner, Chief Judge, Confederated Salish and Kootenai Tribal Court

11:45 a.m. Lunch

12:45 p.m. Labor and Employment Law Issues for Tribes
(FMLA; ADA; Pension Protection Act; and Tribal Considerations in drafting Employee Policies and Procedures)
Greg Guedel, Foster Pepper, PLLC
Julie Kebler, Foster Pepper, PLLC
Scott Wheat, Crowell Law Offices

2:00 p.m. Break (hosted by the Kootenai Tribe)

2:15 p.m. The Spokane River – Keeping it Clean: Issues Regarding Multi-Jurisdictional Regulatory Oversight
Michael Chappell, Esq., Director of the Environmental Law Clinic, Gonzaga University School of Law
Rick Eichstaedt, Esq., Spokane Riverkeeper, Center for Justice
Brian Crossley, Water and Fish Program Manager, Spokane Tribe of Indians

3:30 p.m. Ethical Issues Arising in Tribal and State Multi-Jurisdictional Practice of Law
Brian McClatchey, In-house Counsel, Coeur d’ Alene Tribal Casino

4:30 p.m. Adjourn
4:35 p.m. Meeting and Elections for the Spokane County Bar Association, Indian Law Section
5:00 p.m. Reception hosted by Gonzaga University School of Law
 

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This site has commented previously on cultural issues arising from the blockbuster film Twilight and its recent sequel New Moon. This week the New York Times features commentary by Angela R. Riley regarding the economic impact of the film and book series on the Quileute Nation, whose members are portrayed as shape-shifting wolf people locked in a centuries-long battle with local vampires.

Ms. Riley is Associate Director of the American Indian Studies Center at UCLA. Her analysis of the economic circumstances of the Nation is succinct:

“Twilight” has made all things Quileute wildly popular: Nordstrom.com sells items from Quileute hoodies to charms bearing a supposed Quileute werewolf tattoo. And a tour company hauls busloads of fans onto the Quileute reservation daily. Yet the Tribe has received no payment for this commercial activity. Meanwhile, half of Quileute families still live in poverty.

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Hailed as "The Moses of the Choctaws" and "The Indians' Lee Iaccoca," Phillip Martin led the Choctaw Nation of Mississippi into printing and manufacturing of auto parts and electronics at the Mississippi reservation once called "the worst poverty pocket in the poorest state of the Union." Mr. Martin, who died Thursday at age 83, became chairman in 1959, and then elective chief until 2007.

By the 1990s, the Mississippi Choctaws had moved so far up the wage scale that they moved some of their lower-paid industrial jobs to Mexico. The Nation then concentrated on higher-margin businesses, including golf courses, a water park and two casinos. Revenue from the various businesses was spent on medical care, housing and primary education. Tribe members were granted scholarships to attend any U.S. university.

While Chief Martin was in office, the Nation introduced Choctaw language and cultural affairs preservation programs. As Choctaw chairman in the late 1960s, Mr. Martin used federal money to create a construction company employing Native workers. He convinced the nearby city of Philadelphia, Mississippi to underwrite a bond issue that financed an industrial park, and convinced General Motors to manufacture there and the American Greetings Corporation to print cards there. The Nation, which is one of the biggest employers in Mississippi, has said its business assets are worth over $1 billion. In the two decades ending in 1999, household income on the reservation, home now to about 9,000 people, jumped to $24,100 from $2,500, while unemployment fell from over 75% to about 2%.

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Native American Finance Officers Association Conference Call Series
“Indian Country Financing at a Crossroads”
A Primer to NAFOA’s Next Decade Finance Conference
Wednesday, February 10 – 10:00AM Pacific / 1:00PM Eastern
Dial-In Number: (800) 965–6503
Conference ID: 54703566

NAFOA’s experts will weigh in on the recent Lac du Flambeau management decision, and then take a broader look at the potential crisis that may emerge with future tribal defaults. This call will begin to address the situations that will be discussed in greater depth and breadth at NAFOA’s “Next Decade Finance Conference,” March 16-17 in New Orleans.

The call will be moderated by NAFOA President Bill Lomax, who has been actively working with Tribal governments most of his career and has several years experience working on Wall Street helping tribes with financing and investments. An enrolled member of the Gitxsan Nation, Bill teaches in the area of financial literacy and has acted as a trainer in numerous Tribal financial education sessions
 

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(Nick Verreos)

Russian figure-skaters Oksana Domnina and Maxim Shabalin are among the favorites to win gold at next month's Winter Olympics in Vancouver. However, the costumes and skating routine they have chosen have provoked less-favorable reviews from Aboriginal scholars and activists. The theme for their ice-dancing routine is intended as a tribute to Aboriginal peoples, with the skaters wearing suits with Native-inspired designs and their music featuring samples of Aboriginal instruments.

Despite good intentions, the pair have been criticized for co-opting cultural traditions without due respect or understanding. Bev Manton, chairwoman of the New South Wales Aboriginal Land Council, declared the skaters had misappropriated "a foreign culture, and used [it] inappropriately." "We see it as stealing Aboriginal culture," said Sol Bellear, a member of the Aboriginal Land Council.
 

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