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

July 7, 2010: Tribal Leaders Consultation – Washington DC

July 8, 2010: Meeting with Non-Governmental Organizations – Washington DC

The State Department is currently reviewing the United States' failure to endorse the UN Declaration on the Rights of Indigenous Peoples. As part of this formal review, the State Department is holding consultations with Indian and Alaska Native nations and NGOs to discuss the upcoming review process and receive comments. The State Department wants to receive comments from Indian and Alaska Native nations, NGOs and individuals.

If you are unable to attend the consultations, you may submit written comments to the State Department by email to declaration@state.gov or by mail to S/SR Global Intergovernmental Affairs, U.S. Department of State, 2201 C Street NW., Suite 1317, Washington, DC 20520. Please send written comments by July 15, 2010 to ensure they are given due consideration in the review.

More information on the consultations can be found on the State Department website.
More information on the UN Declaration.
Read the full text of the UN Declaration.
 

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Native-owned corporations have benefitted greatly from federal preferences in no-bid and other set-aside contracts worth billions of dollars each year. That success has attracted criticism from other business owners, including Hispanics who remain ineligible for no-bid contracts, in addition to politicians and advocacy groups who say no-bid contracts are a bad deal for taxpayers. As a result, changes to the federal contracting program used by many Native firms are being actively considered in Congress, and one significant change has already been approved.

The rules for the contracting program, created to assist minority-owned businesses and run by the U.S. Small Business Administration, are still being rewritten. One of the proposed requirements is for Native-owned companies to report annually on how the federal contracts are benefiting their shareholders.

The change that has already moved forward is an amendment to a Department of Defense spending bill, which will prevent firms from receiving no-bid defense contracts worth more than $20 million unless a federal Contracting Officer provides a written justification that is then approved by the Department. Native-owned firms routinely obtain defense contracts worth hundreds of millions of dollars through the no-bid process, but Native owners were not given a chance to comment on the amendment, which was inserted into the spending bill after the conclusion of public hearings. The Defense Department must create new regulations for the amendment, and the Department has agreed to host Tribal consultations before creating them.
 

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“I am absolutely committed to moving forward with you and forging a new and better future together. It’s a commitment that’s deeper than our unique nation-to-nation relationship. It’s a commitment to getting this relationship right, so that you can be full partners in America’s economy, and so your children and grandchildren can have an equal shot at pursuing the American dream.” -- President Obama

 
During the White House Tribal Nations Conference in November 2009, President Obama met with leaders invited from all 564 federally recognized Tribes to forge a stronger relationship with Tribal governments. Acknowledging the history of marginalization of Native people, of promises broken and treaties violated, and of failed government solutions, President Obama called for a new and better future in which Tribal nations are full partners.

The President signed a memorandum at the conference directing Federal agencies to submit detailed plans of actions on how they intend to secure regular and meaningful consultation and collaboration with Tribal officials for policy development. Agencies are currently in the process of implementing these plans. In the interim, the White House has released a Progress Report that provides details on the status of federal programs designed to address issues of concern for Tribal communities. The report can be accessed HERE.
 

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Although Washington state has 29 federally recognized Tribes, most public school students learn little of the history and culture of Native communities in their standard curriculum. Some middle school textbooks end their discussion of Native history around 1877. Thanks to an effort that began nearly seven years ago, this situation is now starting to change for the better.

In 2004, Rep. John McCoy, a member of the Tulalip Tribes, introduced a bill in the state legislature that would have required public school districts to teach Tribal history and culture. The bill did not pass, but the next year legislators approved a bill that encouraged districts to do so. For the past two years, Tribes, the state and 14 schools have worked together to create a curriculum module covering Tribal history, culture, and sovereignty, and to establish partnerships between Tribes and school districts. This fall, the ground-breaking curriculum will be available online for any teacher or school to use.

The goal is to increase understanding about Tribes among young people. "We really want to break down a lot of the stereotypes and misconceptions that people have about the Tribes and Tribal people," said Denny Hurtado, state director of Indian education. "People were saying things like, 'Why do these Indians have special rights?' If they really understood the history and the truth, they would understand that we've always had these rights."

When the curriculum becomes available online in the fall, McCoy hopes it will come into wide use in schools, and is working to raise money to open six training centers around the state where teachers can learn how to use it. "This is to get everyone to understand that because these treaties were signed, they are the law of the land," he said. "And consequently, Tribes are sovereign nations. There are so many people that don't understand that."
 

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Open Pit Uranium Mine, Wyoming

The U.S. Court of Appeals for the 10th Circuit has rejected the EPA’s claim that it has primary permitting authority over uranium mining on property near Tribal lands, limiting the federal government’s reach over this controversial mining in major uranium producing states – many of which are also home to Tribal communities.

The Court’s June 16, 2010 ruling in Hydro Resources, Inc. (HRI) v. EPA, et al., sides with industry arguments that the site of a particular uranium mine in New Mexico is not located on Tribal land because it falls outside the Navajo Nation’s boundaries. The EPA had argued for a broader standard which would allow it to regulate uranium mining anywhere that is considered “Indian Country” under federal law, even if the property was outside the defined boundaries of a Reservation. A result of the Court’s decision is that regulation of such mines will be left to state law, which is not consistent from state to state.

In its published opinion, the Court noted: “EPA argued . . . that we should cast our gaze beyond the particular land in question. In the Agency’s view, because some sufficiently significant (though unspecified) percentage of neighboring lands -- what EPA calls ‘the community of reference’ -- is Indian country, HRI’s land must be considered Indian country, too.” The Court stated that the EPA’s analysis presupposes “that every piece of land is part of some community of reference,” but the Court rejected that argument.

The ruling is particularly significant because it was issued by the court which oversees Oklahoma, Wyoming, Kansas, Colorado, Utah and New Mexico, all of which are important energy and mineral-producing states and which also have large regions of Tribal lands.
 

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Hundreds of First Nation members in Canada will testify this month regarding their experiences at government-funded boarding schools designed to assimilate Native children into Canadian culture and religion. Approximately 150,000 children attended the Church-run boarding schools, which operated until the 1970s.

Children of First Nations who were sent to the schools were separated from their families, forced to abandon their cultural identity, and many were physically and sexually abused. As part of a settlement with the Canadian government four years ago, a truth and reconciliation commission has been established to explore the abuses of this system and allow its victims to offer personal testimonials. The settlement also included an apology from Prime Minister Stephen Harper and more than C$2billion in compensation for former schoolchildren and their families.

The hearings opened in Winnipeg, Manitoba, the first of seven sessions to be held across the country. Buffy Sainte-Marie, a Native singer-songwriter who took part in the commission's opening ceremonies, reflected on the impact the boarding school system had for First Nations. "It is just totally heartbreaking. The things that happened for generations of children, just removed from their homes. How can you say to a child, we're going to take away your parents, your sisters, your brothers your home - everything? You are going to be up for grabs for anyone who wants to do anything to you. And it was done."

Manitoba Justice Murray Sinclair, the head of the commission, said the experiences of former students will no longer be relegated to the sidelines of Canadian history. "They will tell you something they have never told anyone before, it is the kind of truth that causes you to squirm. The truth eventually will heal us all."
 

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The Automotive United Trades Organization (AUTO) in Washington state has filed a lawsuit seeking to end state sales tax reimbursements to Tribal gas stations.  The refunds are based on agreements Governor Christine Gregoire signed with the state’s Tribes in 2007. The agreements refund 75 percent of state taxes collected on fuel sold at Tribal stations -- approximately 28 cents per gallon. The agreements provide that the reimbursed monies are to be used by the Tribes for police and transportation services, but allow Tribes to decide how the money is spent on those services. The state Attorney General’s office has said: "By providing the Tribes with 75 percent of the tax revenues collected on the fuel sales from the tribally owned and operated stations but limiting their use to 'highway-related purposes,' the state provides funding for road and highway projects that might not otherwise be pursued ... "

AUTO Executive Director Tim Hamilton says non-Tribal stations are being undercut by the refund payments to Tribes, which amount to approximately $35 million. "It just guts us," he said. The AUTO lawsuit seeks to have the state licensing department halt any more payments to the Tribes, but does not seek monetary damages beyond a potential request for attorney's fees. "We're not going after the sovereignty of the Tribe, and we're not going after the state's right," Hamilton said, but the group is challenging the state’s ability to redistribute taxes to Tribal stations.
 

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Congress failed to act prior to the Memorial Day recess to approve the $3.4 billion settlement in the Cobell v. Salazar lawsuit, so the deadline has again been extended to June 15, 2010. This is the fourth extension of the deadline for Congress to approve the settlement. Although the House of Representatives voted to approve the deal prior to the deadline, the Senate did not.

Dennis Gingold, the lead lawyer for the Native American plaintiffs, previously said that if Congress did not meet the May 28 deadline that had previously been set, the case would proceed toward trial. However, the plaintiffs agreed to another extension in light of the perception that Congress is close to approving the deal.

The Senate returns to business on June 7, but a list of other items -- such as confirmation hearings for President Obama’s Supreme Court nominee – may be acted on first. Also, Vice Chairman of the Senate Committee on Indian Affairs John Barrasso (R-Wy) has expressed concern about aspects of the deal such as attorney fees and incentive awards for the lead plaintiffs, and may seek to have the deal modified in the Senate legislation.
 

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