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

Responding to chronic failures to accurately account for Native populations in past years, the Census Bureau has actively sought to improve its outreach for the 2010 Census. The Bureau got an early start and partnered with Tribes throughout the country to connect with Tribal members. The initial results indicate a significant increase in the response rate for Tribal members, which should result in better federal representation for Native communities. The information the Census collects helps to determine the allocation of more than $400 billion dollars of federal funding each year, for projects such as hospitals, schools, emergency services, and transportation.

The Bureau partnered with groups such as the National Congress of American Indians and took a government-to-government approach, making formal presentations to all 564 federally recognized Tribes and asking permission to conduct operations on Tribal lands.

A prime example of the improved accounting in Native communities is found with the Tulalip Tribes, whose Census return rate by last month had hit 70 percent — even before Census workers started their direct outreach to individual Tribal members. In 2000, the Tulalip final return rate was 54 percent.

The Tulalip Tribes plan a news conference to thank the Bureau for its efforts. "We're deeply appreciative of the Census Bureau for understanding that Indian Country was underrepresented 10 years ago," said Tulalip Tribal Chairman Mel Sheldon. "We do not forget our history, it hasn't always been the best of relationships ... but there's a new era here, and we're looking forward with optimism." 

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

With the Cobell litigation settlement still awaiting ratification by the US Congress, another question has arisen – how much of the settlement funds should be paid out to lawyers?

The Cobell class-action lawsuit represents up to as many as 500,000 Native Americans who own property held in trust by the US government. The Department of Interior leases that land to others to farm or develop resources, and the Native landholders are supposed to have money generated by the land deposited into Individual Indian Money trust accounts, or IIMs. A federal District Court ruled in 1999 that the government had breached its trust duties, a ruling that was affirmed in 2001. The fight went on over whether the government had to provide an accounting to the IIM holders - the District Court ruled in 2008 that it did, which the appeals court reaffirmed last year.

The plaintiffs had originally sought $47 billion to compensate the affected Native Americans. The settlement signed in December 2009 allocates $1.4 billion to IIM holders; $2 billion is allocated to buy up fractionated lands from individual owners willing to sell; and $60 million will endow a scholarship fund for Native students.

The lead attorney for the plaintiffs is Dennis Gingold, a banking attorney who has been involved dating back to a 1992 meeting called by the first Bush administration in an attempt to sort out the trust money dispute. Gingold teamed up with lead plaintiff Eloise Cobell in bringing suit, and promised he would stick with her, even if there was no money to pay him. "Nobody in his right mind would want to do this," he told The Associated Press. "I thought it was important for my kids to understand that there are things worth fighting for." The14-year legal fight has included more than 3,600 court filings; 220 days of trial; 80 published court decisions; and 10 interlocutory appeals.

Some have questioned how much Gingold and his team of lawyers would receive in this settlement. Republican Sen. John Barrasso of Wyoming has proposed capping lawyer's fees at $50 million. Republican Rep. Doc Hastings of Washington sent a letter to Gingold saying it was reasonable to limit those fees so the Native Americans would receive more. Gingold and Cobell both say Congress doesn't have the authority to change the agreement, and that the proposed fee of just under $100 million would represent just 3 percent of the total settlement. "He has really uncovered the entire behavior of the United States government when it comes to managing Indian Trust assets," Cobell said of Gingold.

In addition to the legal fees, the Blackfeet Reservation Development Fund must repay at least $11 million in grants and loans from various foundations that helped fund the lawsuit. The settlement allows up to $15 million to repay those debts. The deadline for Congress to authorize the settlement and allocate the funds has been extended twice by the court. Cobell and Gingold are hopeful the settlement will be approved this time, but they say if the May 28 deadline passes without a vote, the deal could be terminated and years of additional litigation could ensue.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Seigning Salmon In The Columbia River, Circa 1914

The federal government has issued its final program for restoring endangered salmon on the Columbia River -- a plan that will have substantial impact on the rights and livelihood of the Tribes that comprise the Columbia River Inter-Tribal Fish Commission.

The administration’s revised plan has been updated to reflect new scientific studies and incorporate a flexible "adaptive management" strategy for quick implementation of stronger protective measures if needed. Officials hope that will be sufficient to prevent another rejection of its plans by the federal court overseeing the matter. "While much attention has focused on the courtroom, the region should be proud of what the federal government, states, Tribes and communities together have accomplished for fish," the agencies said in a statement releasing the opinion. "Last year alone, 9,609 miles of wetland habitat were protected and 244 miles of streams were reopened to fish. We've made much progress, and completion of this legal process now prepares us to make much more."

Conservationists had hoped the plan would be much bolder, with less emphasis on hatchery fish and stronger attention to the possibility of breaching dams on the Snake River in eastern Washington that cut off salmon from miles of pristine potential habitat.  The primary argument against the removal of dams is the negative impact on electricity generation, since the Northwest receives a significant portion of its power from hydroelectric sources.

The Columbia River Inter-Tribal Fish Commission is comprised of the fish and wildlife committees of the Yakama, Umatilla, Warm Springs, and Nez Perce tribes. The Tribes have treaty-guaranteed fishing rights and management authority in their traditional fishing areas.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Scholars have begun to question the Indian law credentials of Elena Kagan, President Barack Obama's nominee to the to the U.S. Supreme Court. Other than serving on the American Indian Empowerment Fund, which was established by the Oneida Nation, Kagan lacks a record on Indian law or Indian issues. Since joining the Obama administration as Solicitor General at the Department of Justice, she has written briefs in at least five Indian law cases. All of them went against tribal interests.

A particular fact of note regarding Kagan’s approach to Native legal issues is that she never filled a fully-endowed Indian law post at Harvard Law School, where she served as dean. The Oneida Nation of New York funded the The Oneida Indian Nation Professorship of Law with a $3 million donation. The position was created in 2003, under the condition that Harvard hire a full-time, tenured faculty member dedicated to Indian law. Kagan never hired a permanent, tenured faculty member dedicated to Indian law in her six years at the school.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

May 11, 2010

The Honorable Barack Obama
President of the United States of America
The White House
1600 Pennsylvania Ave NW
Washington, DC 20500

RE: Solicitor General Elena Kagan’s Nomination to the Supreme Court

Dear Mr. President:

Congratulations on your nomination of Solicitor General Elena Kagan to the United State Supreme Court. We are pleased you chose a woman, and clearly General Kagan is a well qualified jurist. NNABA does not currently have a position on General Kagan’s nomination. We are not yet familiar with her experience with Tribal nations or Federal Indian law. However, we very much look forward to hearing from General Kagan about her views on the Constitutional status of Tribes and the protection of Native American rights. We would like to extend an invitation for General Kagan to meet with NNABA and invite her to Indian Country to visit one of our Nations, to visit our Tribal courts, and meet with our elected Tribal leaders.

Importance of Working Knowledge of Federal Indian law.

Due to the unique Constitutional status of Native American Tribes, a disproportionate percentage of cases before the Supreme Court deal with Tribes and Indian law issues. In addition, federal court decisions often disproportionately affect Natives. Most Indian reservation lands continue to be under “federal trust” and federal criminal law applies in conjunction with tribal law. The Supreme Court oversees this relationship with Tribes and the Federal treaty and trust responsibility to Tribal citizens. There are over 560 federally-recognized Tribes in the United States, located in 35 out of the 50 states.

No Native American Supreme Court Justice, Federal Judge, Or Supreme Court Clerk.

A Native American has never served on the Supreme Court, there is not currently a Native on the federal bench and to the best our knowledge there have been almost no Native American Supreme Court clerks.

NNABA continues to be hopeful that your administration will nominate a Native to the federal bench, and we appreciate any efforts to ensure that all of your federal nominees have a strong working knowledge of Federal Indian law.

Respectfully,

Lael Echo-Hawk
President, National Native American Bar Association

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

In a pointed editorial in Indian Country Today, Angelique EagleWoman criticizes the $3.4 billion settlement between the federal government and the Cobell lawsuit's Native American trust account plaintiffs as “a scam”.  Ms. EagleWoman is a citizen of the Sisseton-Wahpeton Dakota Oyate of the Lake Traverse Reservation in South Dakota, is an attorney licensed in Washington, D.C., Oklahoma, North Dakota and South Dakota, and teaches Civil Procedure and Native American Law at the University of Idaho.

In her critique of the Cobell settlement, she notes that the normal rules for class-action lawsuits appear not to have been followed in the case, depriving individual plaintiffs of the right to “opt-out” of the case.  This prevented individual Native Americans from pursuing their own separate legal remedies for the government’s alleged mismanagement of Native trust accounts and lands. She asserts that when the $1.4 billion allocated to trust account payments is broken down among the number of Native Americans with claims, the per-person dollar amount averages out to a mere $1,000.00 – with some plaintiffs to receive as little as $500.

Based on the above, I call the Cobell Proposed Settlement a scam. As a Dakota woman, a lawyer, and a law professor, I am appalled that the U.S. government would attempt to push this through Congress. The U.S. government has imposed the trust relationship on Indian peoples in mid-North America. Surely, the highest fiduciary duty is owed to individual Indians whose lands are managed by the U.S. At every step, the U.S. government has used its attorneys to fight this simple action asking for an accounting. Here in the latest round, Interior wants to sneak through this proposed settlement and stop the accounting, the claims for mismanagement, and the rights of those who are most at the mercy of the U.S. trust responsibility. This would be on par with the bleakest eras of U.S. Indian policy such as removal, assimilation and termination. We need the eagle whistle-blowers to come forth in Indian country to stop this great wrong from being perpetrated by the U.S. government. – Angelique EagleWoman

• Email This
• Print
• Comments (7)
• Trackbacks
• Share Link

Duwamish River Bank Near Seattle

To resolve a multi-party federal lawsuit, the Boeing Company will pay $2 million to remediate environmental damage in Seattle’s Duwamish waterway, the ancestral grounds for the Duwamish, Muckleshoot, and Suquamish Tribes. Joining as plaintiffs with several federal and state agencies, the Muckleshoot and Suquamish brought the suit to fund the cleanup of the site where Boeing built many of the B-17 bombers used during World War II. Solvents, oils and other chemicals polluted the property and leached into groundwater that migrated to the Duwamish waterway.

Boeing has agreed to undertake two habitat-restoration projects to benefit salmon and birds. The company will create nearly five acres of new wetlands, restore a half-mile of waterway, and establish a holding area for young salmon. It also will demolish several buildings that were partially constructed on pilings over the waterway during the 1930s and early 1940s. "We'll be taking the pilings out and restoring the bank," said Blythe Jameson, a spokeswoman for Boeing.

In addition to the Tribes, the settlement resolves claims against Boeing by the National Oceanic and Atmospheric Administration, the Department of Interior, U.S. Fish and Wildlife Service, the Washington State Department of Ecology, and the Washington State Department of Fish and Wildlife. The agreement includes the creation of a permanent stewardship fund for the remediation projects. Boeing says cleanup and restoration activities are scheduled to begin in 2012, and will take several years to complete.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Inter Tribal Council of Arizona has sent a letter to Arizona’s Governor stating the concerns of Native communities regarding the state’s new criminal laws pertaining to illegal immigration. The law, S.B. 1070, makes it a crime to be in Arizona without legal immigration status, and requires police to check suspects for residency paperwork. It also bans solicitation of work and hiring day laborers off the street.

“We have a range of concerns, including tribal sovereign nations not being recognized as able to define and protect their own borders as they see fit, and the possibility that tribal citizens will be profiled by police,” said John Lewis, director of the organization. “This impacts all indigenous people, and the lawmakers need to know it,” Lewis said. “America’s boundaries are not tribal boundaries.”

Lewis noted that some tribes, including the Tohono O’odham Nation and the Pascua Yaqui Tribe, are on and near the U.S.-Mexico border. “Our tribes have much interaction with Mexico, through culture and life, and I’m not sure people realize that there’s an economic impact involved as well.”

Ian Record, education manager with the Native Nations Institute, said he is concerned that he could be targeted, since his truck has a “Latinos for Obama” sticker on it. “It’s scary that something like that could be a factor in you getting pulled over. My wife is Latina. We shouldn’t be afraid of that.” Record noted that citizens of the Tohono O’odham Nation and the Pascua Yaqui Tribe have been strongly rallying against the law. “It complicates things for tribal citizens, especially of those nations. It has to be greatly concerning to everyone that law-abiding citizens of those nations are likely to be pulled over,” Record said. “The tribe’s sovereignty and the tribal citizens’ rights are obviously being harmed.”

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Despite the passage of three deadlines agreed to between the federal government and the plaintiffs, Congress has still not ratified the landmark $3.4 billion settlement in the decades-long Cobell Native American trust litigation. The previous deadlines for congressional ratification were December 2009, February 2010, and April 2010.

A new deadline of May 31, 2010 has been agreed to by the plaintiffs and the federal government, but it will likely be the last extension. “The district judge [Judge James Robertson, U.S. District Court for the District of Columbia] declared that he does not want further extensions of the December 7, 2009 settlement agreement, and he set a date certain in that regard,” says Dennis Gingold, lead counsel for the plaintiffs.

“That is a fair decision in view of representations made by the government that our settlement would be ratified by Congress on or before the end of December 2009. If the settlement agreement expires, plaintiffs will resume intense litigation against Treasury and Interior on all matters relevant to the case, including the renewal of matters that remain unresolved and the refiling of motions that have been dismissed without prejudice as a necessary predicate to settlement.”

The settlement agreement calls for the federal government to provide $1.4 billion in compensation for individual Native American trust fund beneficiaries, and $2 billion for a land consolidation program to be overseen by the Department of the Interior to buy back fractionated trust lands.

• Email This
• Print
• Comments
• Trackbacks
• Share Link